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AMERICAN  DIPLOMACY  IN  THE  ORIENT. 
8vo,  $3.00,  net.     Postage  20  csnis. 

A  CENTURY  OF  AMERICAN  DIPLOMACY: 
Being  a  Brief  Review  of  the  Foreign  Rela- 
tions of  the  United  States,   1776-1876.     8vo, 

HOUGHTON,  MIFFLIN  &  COMPANY, 

Boston  and  New  York. 


ARBITRATION 

AND 

THE  HAGUE   COURT 


ARBITRATION 

AND 

THE    HAGUE     COURT 


BY 

JOHN  W.  FOSTER 

President  of  the  National  Arbitration  Conference 


BOSTON  AND  NEW  YORK 

HOUGHTON,  MIFFLIN  AND    COMPANY 

d)e  Klitec^itie  J^tt?^,  Cambribge 

1904 


COPYRIGHT    1904   BY  JOHN   W.   FOSTER 
ALL   RIGHTS   RESERVED 

Published  November  iqo4 


F8 


cu 


This  monograph  has  been  prepared  in  response 
to  a  resolution  of  the  Mohonk  Arbitration  Confer- 
ence, asking  the  writer  to  present  to  the  public  the 
present  phases  of  the  subject  of  arbitration. 

Washington,  November  1,  1904. 


220159 


CONTENTS 


PAGE 


I.  Historical  Review 3 

II.  The  Hague  Peace  Conference     ...  13 

III.  Disarmament 24 

IV.  The  Arbitration  Convention    ....  39 
V.  The  Hague  Court 58 

VI.   Suggested  Modifications  of  the  Court  .  79 

VII.   Special  and  Joint  Commissions      ...  87 

VIII.   Conclusion 96 

APPENDIX 

A.  The  Hague  Arbitration  Convention    .     .     .  107 

B.  Anglo-French  Treaty  of  1903 130 

C.  The  Netherlands-Denmark  Treaty  of  1904  .  132 

D.  Extract  from  Treaty  between  Mexico  and 

Spain  of  1902 135 

E.  Resolution  of  the  Interparliamentary  Union  .  137 

F.  Hon.  T.  E.  Burton's  Speech  on  the  Naval 

Appropriation  Bill 139 


ARBITRATION  AND  THE 
HAGUE  COURT 


ARBITRATION  AND  THE 
HAGUE  COURT 


HISTORICAL  REVIEW 

THE  peaceful  settlement  of  disputes 
among  nations  by  means  of  arbitration 
and  the  prevention  of  war  throughout  the 
world  are  dependent  in  great  measure  upon 
the  acceptability  and  efficacy  of  the  Hague 
Permanent  Court  of  Arbitration.  It  will  be 
my  purpose  in  the  following  pages  to  make 
this  clear  to  my  readers.  Having  regard 
to  the  busy  public  to  whom  it  is  addressed, 
I  shall  seek  to  make  the  discussion  as 
concise  as  possible. 

At  the  outset  a  seeming  embarrassment 
presents  itself  in  the  fact  that,  while  we  are 
considering  the  subject,  two  powerful  na- 


ARBITRATION 

tions  are  engaged  in  a  sanguinary  and  waste- 
ful conflict,  which  threatens  to  disturb  the 
peaceful  relations  of  other  powers ;  that 
the  ruler  of  one  of  the  combatants  was  the 
prime  mover  in  the  establishment  of  the 
Hague  Permanent  Court ;  and  that  the 
other  combatant  was  a  party  to  its  creation. 
I  trust  that,  notwithstanding  this  appar- 
ently inconsistent  and  contradictory  situa- 
tion, we  shall  find  in  the  present  state  of  the 
affairs  of  the  world  good  foundation  of 
encouragement  for  the  cause  of  arbitration 
and  for  the  settlement  of  international  con- 
troversies by  peaceful  means,  and  that  the 
Hague  Court  has  the  promise  of  a  wide 
field  of  usefulness  opening  up  to  it  in  the 
relations  of  the  nations  with  each  other. 

For  a  proper  comprehension  of  the  sub- 
ject, it  will  be  necessary  to  note  briefly  the 
influences  leading  up  to  the  creation  of 
the  Hague  Court,  and  to  consider  the  cir- 
cumstances under  which  the  Hague  Peace 
Conference  was  called  which  framed  the 


HISTORICAL   REVIEW 

rules  by  which  the  Court  is  governed,  the 
composition  and  spirit  of  the  Conference, 
the  provisions  of  the  convention  estabHsh- 
ing  the  Court,  and  the  amendment,  if  any, 
required  of  its  present  constitution  or  rules. 
The  sentiment  calling  for  the  settlement 
of  international  controversies  by  peaceful 
methods  rather  than  by  the  unreasoning 
and  bloody  arbitrament  of  war  is  not  entirely 
of  modern  origin.  At  the  different  periods 
in  the  past  when  nations  have  emerged 
from  barbarism  into  a  more  civilized  state, 
there  has  arisen  among  men  of  good- will  a 
desire  for  peace  on  earth.  In  the  earliest 
records  of  history  there  are  found  isolated 
instances  where  great  political  and  inter- 
national questions  have  been  submitted  to 
some  arbitrating  power.  The  first  attempt 
at  international  control  for  the  preserva- 
tion of  peace  is  found  in  the  Amphicty- 
onic  Council  of  the  Greek  States.  The 
prevailing  sentiment  of  that  era  among  men 
of  enlightenment  and  humane  views  was 
5 


ARBITRATION 

expressed  in  the  memorable  statement  of 
Thucydides,  that  *'it  is  wicked  to  proceed 
against  him  as  a  wrongdoer  who  is  ready 
to  refer  the  question  to  an  arbitrator." 

It  must  be  confessed,  however,  that  the 
prevailing  spirit  of  the  ancients  was  war- 
like, but  even  the  triumph  of  the  great  war- 
riors and  of  the  conquering  nations  was 
not  without  benefit  to  mankind.  Under 
the  universal  sway  of  the  Roman  legions 
there  came  times  when  the  doors  of  the 
Temple  of  Janus  were  closed,  and  peace 
was  enforced  throughout  the  widespread 
dominion  of  the  Empire. 

As  the  nations  began  to  emerge  from  the 
Dark  Ages,  the  spirit  of  peace  made  feeble 
efforts  to  assert  itself.  During  that  long 
night  of  war  and  devastation  the  Pope  was 
the  only  restraining  influence.  The  earliest 
advocates  for  another  spirit  to  control  the 
relations  of  nations  with  each  other  were 
found  among  the  scholars  and  writers  on 
international  law.  Grotius,  whose  treatise 
6 


HISTORICAL   REVIEW 

on  the  Law  of  War  and  Peace  has  exerted 
the  most  profound  influence  among  modern 
nations,  in  quoting  the  statement  of  Thu- 
cydides  just  cited,  declared  that  "espe- 
cially are  Christian  Kings  and  States  bound 
to  try  this  way  of  avoiding  war;"  and  he 
proceeded  to  develop  the  idea  which  has 
had  its  partial  realization  in  the  Hague 
Conference.    He  wrote :  — 

*'  Both  for  this  reason  and  for  others  it 
would  be  useful,  and  indeed  it  is  almost 
necessary,  that  congresses  of  Christian 
Powers  should  be  held,  in  which  contro- 
versies which  arise  among  some  of  them 
may  be  decided  by  others  who  are  not  inter- 
ested, and  in  which  measures  may  be  taken 
to  compel  the  parties  to  accept  peace  on 
equitable  terms." 

The  plan  of  Henry  IV  of  France  for  a 
Council  or  Congress  of  European  powers 
to  maintain  peace  among  the  nations  was 
doubtless  inspired  by  high  motives,  but  it 
had  the  defect  of  a  combination  of  force 
to  bring  about  the  Congress.  Later,  Wil- 
7 


ARBITRATION 

liam  Penn  published  a  scheme  "for  the 
Estabhshment  of  an  European  Dyet,  Par- 
Hament,  or  Estates."  Likewise,  the  Abbe 
Saint  Pierre  of  France,  Bentham,  Kant,  and 
others  in  the  seventeenth  and  eighteenth 
centuries  devised  and  advocated  plans  for 
the  creation  of  a  congress  or  tribunal  to 
secure  universal  and  perpetual  peace. 

One  of  the  most  important  events  tend- 
ing to  support  the  project  of  such  a  con- 
gress and  tribunal  was  the  adoption  by  the 
American  Colonies  of  the  Constitution  of 
the  United  States  and  the  creation  of  a 
Supreme  Court,  before  which  the  States, 
independent  in  all  that  related  to  their  do- 
mestic government,  agreed  to  bring  or  to 
submit  all  the  controversies  which  might 
arise  between  them.  A  congress  or  union 
such  as  was  formed  by  this  Constitution 
was  not  one  suitable  for  the  civilized  na- 
tions seeking  for  a  combination  to  preserve 
universal  peace,  but  the  example  set  by  the 
successful  operation  of  its  Supreme  Court 
8 


HISTORICAL   REVIEW 

was  the  cause  of  much  encouragement  to 
the  advocates  of  an  international  tribunal, 
before  which  the  nations  might  submit  their 
controversies  for  peaceful  settlement. 

The  nineteenth  century  was  more  fruit- 
ful than  any  similar  era  in  the  submission 
to  the  adjudication  of  special  arbitration 
tribunals  of  the  differences  of  nations  in- 
solvable  by  diplomatic  methods.  The  most 
notable  of  these,  and  that  which  exerted  the 
greatest  influence  upon  the  nations,  was  the 
arbitration  of  the  bitter  controversy  between 
Great  Britain  and  the  United  States,  grow- 
ing out  of  the  American  Civil  War  and 
the  irritating  questions  existing  with  Can- 
ada, which  were  peacefully  settled  by  the 
Treaty  of  Washington  of  1871.  Of  this  the 
British  statesman  and  writer,  John  Morley, 
says : — 

"The  Treaty  of   Washington    and   the 

Geneva  Arbitration  stand  out  as  the  most 

notable  victory  in  the  nineteenth  century  of 

the  noble  art  of  preventive  diplomacy  and 

9 


ARBITRATION 

the  most  signal  exhibition  in  their  history 
of  self-command  in  two  of  the  three  chief 
democratic  powers  of  the  Western  World." 

As  between  these  two  kindred  nations,  it 
came  to  be  the  settled  policy  to  adjust  their 
differences  which  did  not  yield  to  diplo- 
matic methods  by  a  reference  of  them  to 
special  tribunals  created  for  the  purpose. 
In  1890,  the  Congress  of  the  United  States 
took  a  long  step  in  advance  by  the  adop- 
tion of  a  resolution  "that  the  President  be 
requested  to  invite  from  time  to  time,  as 
fit  occasion  may  arise,  negotiations  with 
any  government  with  which  the  United 
States  has  or  may  have  diplomatic  relations, 
to  the  end  that  any  differences  or  disputes 
arising  between  the  two  governments,  which 
cannot  be  adjusted  by  diplomatic  agency, 
may  be  referred  to  arbitration,  and  be 
peaceably  adjusted  by  such  means."  And 
in  1893,  the  British  House  of  Commons 
adopted  a  resolution  approving  of  this  ac- 
tion of  the  Congress  and  expressing  "the 
10 


HISTORICAL   REVIEW 

hope  that  Her  Majesty's  government  will 
lend  their  ready  cooperation  to  the  govern- 
ment of  the  United  States  for  the  accom- 
plishment of  the  object  had  in  view."  By 
this  action  these  two  great  nations  placed 
themselves  on  record  officially  as  favoring 
the  most  complete  submission  of  unsettled 
international  differences  to  the  peaceful 
method  of  arbitration. 

At  this  period  a  somewhat  different  state 
of  affairs  existed  in  the  relations  of  the  dif- 
ferent powers  of  Continental  Europe.  The 
warlike  policy  of  Bismarck,  which  led  to 
the  humiliation  of  France  and  the  consoli- 
dation of  Germany,  had  converted  the  Con- 
tinent into  a  military  camp.  The  nations 
were  vying  with  each  other  in  building  up 
their  armies  and  navies.  The  enormous 
expenditure  to  maintain  these  establish- 
ments was  becoming  an  intolerable  burden, 
and  the  countries  confronted  each  other 
in  a  state  of  armed  peace,  which  might 
be  broken  by  any  untoward  event. 
11 


ARBITRATION 

In  the  last  decade  of  the  nineteenth  cen- 
tury, when  this  state  of  affairs  was  reahz- 
ing  its  highest  development,  Bismarck  had 
retired  to  private  life,  and  a  new  Emperor 
ascended  the  Russian  throne.  It  is  very 
doubtful  whether  the  Rescript  of  the  Em- 
peror Nicholas,  inviting  the  assembly  of 
the  Hague  Conference,  would  have  been 
issued  if  the  Prince  of  "blood  and  iron'* 
had  still  remained  in  control  of  govern- 
mental affairs  in  Germany.  His  retirement 
was  followed  by  a  relaxation  of  the  term  of 
service,  and  his  death  in  1898  deprived  the 
military  party  of  its  greatest  champion. 
The  year  following  was  signalized  by  the 
issuance  of  the  invitation  of  the  Autocrat 
of  All  the  Russias  to  the  governments  of 
the  world  to  send  delegates  to  a  Conference 
to  consider  some  means  of  relieving  the 
nations  of  the  heavy  burden  of  armament 
which  was  oppressing  them,  and  devising 
a  method  for  preserving  peace  or  of  re- 
straining war. 


II 

THE  HAGUE  PEACE  CONFERENCE 

THE  suggestion  of  the  Hague  Peace 
Conference  was  one  of  the  most  im- 
portant events  which  marked  the  close  of 
the  nineteenth  century.  It  gave  promise  of 
the  culmination  of  centuries  of  study  and 
labor  and  longing  for  some  permanent  ar- 
rangement whereby  the  world  might  be 
delivered  from  the  strife  and  carnage  with 
which  it  had  been  afflicted  in  all  the  past 
ages.  The  summons  came  to  the  nations  at 
a  time  when  peace  prevailed,  and  when  it 
was  possible  to  bring  together  the  most  not- 
able assembly  of  statesmen,  scholars,  and 
soldiers  ever  held. 

Europe  had  previously  witnessed  many 

international  congresses  or  conferences,  but 

all  of  them  had  been  of  a  very  different 

character.    Mr.  Holls,  the  historian  of  the 

13 


ARBITRATION 

Hague   Conference,^   in   noting  this  fact, 
writes :  — 

"  The  vital  distinction  between  these 
gatherings  and  the  Peace  Conference  at 
The  Hague  is  that  all  of  the  former  were 
held  at  the  end  of  a  period  of  warfare,  and 
their  first  important  object  was  to  restore 
peace  between  actual  belligerents;  whereas 
the  Peace  Conference  was  the  first  diplo- 
matic gathering  called  to  discuss  guaran- 
tees of  peace  without  reference  to  any  par- 
ticular war —  past,  present,  or  prospective." 

The  call  for  the  Conference  was  followed 
by  a  hearty  approval  in  the  United  States 
and  much  commendation  in  Great  Britain ; 
but  the  press  of  Europe  was  generally  skep- 
tical as  to  any  practical  results  to  flow  from 
it.  Even  in  Russia,  whose  ruler  had  initi- 
ated the  Conference,  little  sympathy  was 

^  The  Peace  Conference  at  The  Hague  and  its  Bearings 
on  International  Law  and  PoUcy,  by  Frederick  W.  Holls, 
a  member  of  the  Conference.  New  York  and  London  : 
Macmillan  &  Co.,  1900  A  general  reference  is  made  to 
this  work,  and  acknowledgment  given  of  the  use  of  its 
material  in  much  of  the  discussion  of  this  paper. 
14 


THE   HAGUE    PEACE    CONFERENCE 

manifested  with  it..  Since  the  days  of  Peter 
the  Great  the  Russians  had  been  led  to 
believe  that  the  army  was  the  glory  and 
bulwark  of  the  empire,  and  the  public 
mind  was  hardly  prepared  to  admit  that  its 
maintenance  was  an  unwise  expenditure  of 
public  funds,  or  that  it  was  an  unnecessary 
burden  upon  the  country.  A  feeling  ex- 
isted in  France  that  the  Conference  might 
be  made  an  obstacle  to  the  realization  of 
the  hope  of  its  people  for  the  recovery  of  its 
lost  provinces  on  the  Rhine.  Many  journals 
in  Germany  combated  the  controlling  idea 
in  the  call  for  a  diminution  or  limitation  of 
armaments,  and  maintained  that  the  mili- 
tary establishment  was  not  impoverishing 
the  state,  as  the  money  was  expended  and 
redistributed  in  the  country.  Mr.  Pierce, 
the  American  representative  at  St.  Peters- 
burg, reported  to  his  government  that  "  the 
general  consensus  of  opinion  among  the 
members  of  the  Diplomatic  Corps  "iiow 
present  appears  to  be  that  the  proposition 
15 


ARBITRATION 

is  visionary  and  Utopian,  if  not  partaking 
of  Quixotism.  Little  of  value  is  expected 
to  result  from  the  Conference,  and  indeed 
every  diplomatic  officer  with  whom  I  have 
talked  seems  to  regard  the  proposition  with 
that  technical  skepticism  which  great  mea- 
sures of  reform  usually  encounter." 

The  composition  of  the  Conference  was 
a  subject  of  some  complexity.  Were  the 
South  African  republics  to  be  invited,  while 
a  war  was  imminent  between  them  and 
Great  Britain,  involving,  in  part,  the  suze- 
rain rights  of  the  latter.?  Was  the  Pope 
of  Rome  to  be  recognized  in  his  claim  as 
a  temporal  prince.'^  Other  embarrassing 
questions  in  this  connection  might  be  sug- 
gested. The  Czar  avoided  these  questions 
by  confining  the  invitations  to  the  countries 
having  diplomatic  representatives  at  St. 
Petersburg.  Unfortunately,  this  omitted 
all  the  governments  on  the  American  Hem- 
isphere, except  the  United  States  and  Mex- 
ico. While  these  were  thus  deprived  of  the 
16 


THE    HAGUE    PEACE    CONFERENCE 

privilege  of  participating  in  the  Conference 
and  assisting  in  shaping  its  action,  they 
have  taken  steps  to  secure  adhesion  to  the 
conventions  framed  by  it.  At  the  second 
congress  of  the  American  repubhcs,  held 
in  the  City  of  Mexico  in  1902,  a  resolution 
was  unanimously  passed  approving  of  the 
conventions,  and  soliciting  the  good  offices 
of  the  United  States  and  Mexico,  partici- 
pants in  the  Hague  Conference,  to  secure 
their  admission  as  signatory  powers. 

While  it  is  highly  desirable  that  these 
nations  should  be  admitted  to  full  partici- 
pation in  the  conventions  adopted  by  the 
Conference,  there  does  not  seem  to  be  any 
disposition  to  deprive  them  of  the  most 
material  benefits  resulting  from  these  in- 
struments. As  evidence  of  this,  Venezuela 
was  allowed  in  1903  to  bring  her  cause 
against  certain  of  the  European  Powers 
before  the  Hague  Court,  and  that  republic, 
as  well  as  the  other  governments  concerned, 
have  accepted  the  award  of  that  Tribunal. 
17 


ARBITRATION 

The  Rescript  of  the  Emperor  of  Russia, 
which  constituted  the  invitation  to  the 
Conference,  was  issued  August  24,  1898. 
From  it  the  following  extracts,  indicating 
its  scope,  are  made :  — 

*'The  maintenance  of  general  peace,  and 
a  possible  reduction  of  excessive  armaments 
which  weigh  upon  all  nations,  present 
themselves  in  the  existing  conditions  of 
the  world,  as  the  ideals  toward  which  the 
endeavors  of  all  governments  should  be 
directed.  .  .  . 

"  Filled  with  this  idea.  His  Majesty  has 
been  pleased  to  order  me  to  propose  to 
all  the  Governments  whose  representatives 
are  accredited  to  the  Imperial  Court,  the 
meeting  of  a  conference  which  would  have 
to  occupy  itself  with  this  grave  problem. 

*'  This  conference  should  be,  by  the  help 
of  God,  a  happy  presage  for  the  century 
which  is  about  to  open.  It  would  converge 
in  one  powerful  focus  the  efforts  of  all 
States  which  are  sincerely  seeking  to  make 
the  great  idea  of  universal  peace  triumph 
over  the  elements  of  trouble  and  discord." 

The    invitation    of    the    Emperor   was 
18 


THE    HAGUE    PEACE    CONFERENCE 

promptly  accepted  by  the  United  States. 
The  British  government  Hkewise  gave  early 
notice  of  its  intention  to  "willingly  accept," 
and  after  some  delay,  made  necessary  by 
the  calling  of  a  meeting  of  the  Cabinet,  the 
Prime  Minister  wrote :  "  His  Majesty's 
government  gladly  accepts  the  invitation 
for  a  conference  to  discuss  the  best  meth- 
ods of  attaining  the  two  objects  specified, 
namely:  the  diminution  of  armaments  by 
land  and  sea,  and  the  prevention  of  armed 
conflicts  by  pacific,  diplomatic  procedure." 
Notwithstanding  the  apparent  skeptical 
sentiment  in  Continental  Europe,  all  the 
governments  invited,  with  more  or  less 
promptness,  accepted,  and  the  meeting  for 
the  Conference  was  fixed  for  May  18,  1899, 
at  The  Hague.  The  reason  for  the  selection 
of  the  capital  of  the  Netherlands  was  stated 
by  the  Russian  Minister  of  Foreign  Affairs 
to  be  that  "  His  Imperial  Majesty  considers 
it  advisable  that  the  Conference  should  not 
sit  in  the  capital  of  one  of  the  Great  Powers 
19 


ARBITRATION 

where  so  many  political  interests  are  cen- 
tred, which  might  impede  the  progress 
of  a  work  in  which  all  the  countries  are 
equally  interested."  And  M.  de  Staal,  the 
Russian  Ambassador,  in  opening  the  Con- 
ference, said :  — 

*'In  the  quiet  surroundings  of  The  Hague, 
.  .  .  upon  the  historic  ground  of  the  Neth- 
erlands, the  greatest  problems  of  the  polit- 
ical life  of  States  have  been  discussed;  it 
is  here,  as  we  may  say,  that  the  cradle  of 
the  science  of  international  law  has  stood; 
for  centuries  the  important  negotiations 
between  European  Powers  have  taken 
place ;  and  it  is  here  that  the  remarkable 
treaty  was  signed  which  imposed  a  truce 
during  the  bloody  contest  between  States. 
We  find  ourselves  surrounded  by  great  his- 
toric traditions." 

The  edifice  also  in  which  the  sessions  of 
the  Conference  were  held  had  special  ap- 
propriateness for  the  objects  to  be  attained. 
It  assembled  in  the  Oranje  Zaal  of  the  fa- 
mous House  in  the  Wood  (Huis  ten  Bosch), 
decorated  by  some  of  the  best  known  of  the 
20 


THE   HAGUE   PEACE    CONFERENCE 

Dutch  artists.  In  welcoming  the  members 
to  this  hall,  the  Netherlands  Minister  of 
Foreign  Affairs  said :  — 

"Among  the  greatest  of  the  allegorical 
figures  which  you  will  admire  here,  there 
is  one  relating  to  the  peace  of  Westphalia, 
which  especially  merits  your  attention.  It 
is  the  one  where  you  see  Peace  entering  this 
room  for  the  purpose  of  closing  the  Tem- 
ple of  Janus.  I  hope,  gentlemen,  that  this 
beautiful  allegory  will  be  a  good  omen  for 
your  labors,  and  that,  after  they  have  been 
terminated,  you  will  be  able  to  say  that 
Peace,  which  here  is  shown  to  enter  this 
room,  has  gone  out  for  the  purpose  of  scat- 
tering its  blessings  over  all  humanity." 

Under  such  inspiring  local  surroundings, 
the  members  of  the  Conference  entered 
upon  their  labors.  They  were  neither 
dreamers  nor  theorists,  but  men  of  emi- 
nently practical  experience  in  government, 
diplomacy,  and  war. 

The  respective  nations  sent  as  their  re- 
presentatives their  first  diplomatists,  most 
erudite  jurists,  prominent  men  of  affairs, 
21 


ARBITRATION 

and  skillful  soldiers.  The  delegation  of  the 
United  States  comprised  Ambassador  An- 
drew D.  White,  Seth  Low,  Mayor  of  New 
York,  Minister  Newel,  General  Crozier  of 
the  Army,  Captain  Mahan  of  the  Navy, 
and  F.  W.  Holls  of  the  New  York  Bar ; 
and  the  delegations  from  the  other  coun- 
tries embraced  equally  able  and  experienced 
men.  An  examination  of  the  proceedings 
will  show  that  throughout  the  deliberations 
of  the  Conference,  they  were  animated  by 
a  sincere  desire  to  accomplish  its  objects, 
as  far  as  they  deemed  them  practicable  of 
attainment. 

Its  assemblage  was  in  marked  contrast 
with  the  congresses  or  conferences  of  the 
preceding  centuries  in  the  complete  ab- 
sence of  display  or  spirit  of  rivalry.  In  the 
Congresses  of  Westphalia,  Ryswick,  and 
Utrecht,  for  instance,  there  was  an  os- 
tentatious array  of  "coaches  and  six,"  a 
numerous  retinue,  and  a  constant  struggle 
for  precedence  in  processions  and  in  the 
22 


THE   HAGUE   PEACE    CONFERENCE 

council  chambers.  Here  there  was  a  quiet 
meeting  of  gentlemen,  a  recognition  of  the 
perfect  equality  of  the  smallest  independ- 
ent state,  and  a  seating  in  the  assembly 
hall  in  the  alphabetical  order  of  the  names 
of  the  nations  they  represented. 

Its  members,  too,  were  impressed  with 
the  importance  of  the  event.  In  calling  the 
Conference  to  order  at  its  first  session, 
the  Dutch  Minister  said:  "The  day  of  the 
meeting  of  this  Conference  will,  beyond 
doubt,  be  one  of  the  days  which  will  mark 
the  history  of  the  century  which  is  about  to 
close."  In  his  opening  address,  the  Presi- 
dent, M.  de  Staal,  asserted  that  it  "marks 
a  great  date  in  the  history  of  humanity." 
Its  historian  styled  it  "the  first  great  Par- 
liament of  Man." 

With  such  elevated  ideas,  the  Conference 
entered  upon  its  labors.  But  at  the  outset 
it  met  with  discouragement  and  failure  re- 
specting one  of  its  principal  objects. 


Ill 

DISARMAMENT 

IN  the  circular  letter  of  the  Russian  Min- 
ister of  Foreign  Affairs  of  January  11, 
1899,  following  the  Rescript  convoking 
the  Conference,  the  subjects  to  be  sub- 
mitted for  consideration  were  set  forth 
in  detail,  and  the  first  of  these  was  as  fol- 
lows :  — 

"  1.  An  understanding  not  to  increase  for 
a  fixed  period  the  present  effective  of  the 
armed  military  and  naval  forces,  and  at  the 
same  time  not  to  increase  the  Budgets  per- 
taining thereto;  and  a  preliminary  ex- 
amination of  the  means  by  which  reduction 
might  even  be  effected  in  future  in  the 
forces  and  Budgets  above  mentioned." 

The  evil  effects  of  the  vast  armaments 
oppressing  the  nations  of  the  earth  were 
most  strikingly  set  forth  in  the  Rescript  of 
the  Czar.    I  quote  from  that  paper :  — 
24 


DISARMAMENT 

*'  In  the  course  of  the  last  twenty  years 
the  longings  for  a  general  appeasement  have 
become  especially  pronounced  in  the  con- 
science of  civilized  nations.  The  preserva- 
tion of  peace  has  been  put  forward  as  the 
object  of  international  policy;  in  its  name 
great  States  have  concluded  between  them- 
selves powerful  alliances ;  it  is  the  better  to 
guarantee  peace  that  they  have  developed, 
in  proportions  hitherto  unprecedented,  their 
military  forces,  and  still  continue  to  increase 
them  without  shrinking  from  any  sacrifice. 

"  All  these  efforts,  nevertheless,  have  not 
yet  been  able  to  bring  about  the  beneficent 
results  of  the  desired  pacification.  The 
financial  charges  following  an  upward 
march  strike  at  the  public  prosperity  at  its 
very  source. 

"The  intellectual  and  physical  strength 
of  the  nations,  labor  and  capital,  are  for 
the  major  part  diverted  from  their  natu- 
ral application,  and  unproductively  con- 
sumed. Hundreds  of  millions  are  devoted 
to  acquiring  terrible  engines  of  destruction, 
which,  though  to-day  regarded  as  the  last 
word  of  science,  are  destined  to-morrow  to 
lose  all  value  in  consequence  of  some  fresh 
discovery  in  the  same  field. 
25 


ARBITRATION 

"National  culture,  economic  progress, 
and  the  production  of  wealth  are  either  par- 
alyzed or  checked  in  their  development. 
Moreover,  in  proportion  as  the  armaments 
of  each  Power  increase,  so  do  they  less  and 
less  fulfill  the  object  which  the  Govern- 
ments have  set  before  themselves. 

"  The  economic  crisis,  due  in  great  part 
to  the  system  of  armaments  a  Voutrance, 
and  the  continual  danger  which  lies  in  this 
massing  of  war  material,  are  transforming 
the  armed  peace  of  our  days  into  a  crush- 
ing burden,  which  the  people  have  more 
and  more  diflBculty  in  bearing.  It  appears 
evident,  then,  that  if  this  state  of  things 
were  prolonged,  it  would  inevitably  lead  to 
the  very  cataclysm  which  it  is  desired  to 
avert,  and  the  horrors  of  which  make  every 
thinking  man  shudder  in  advance." 

In  a  conference  with  the  British  Am- 
bassador, following  the  Rescript,  the  Rus- 
sian Minister  of  Foreign  Affairs  said  that 
the  Emperor,  although  deeply  impressed 
with  the  desirability  of  a  general  disarma- 
ment, did  not  look  for  an  immediate  real- 
ization of  the  aims  he  had  so  much  at  heart, 
26 


DISARMAMENT 

but    he   desired    to    initiate  an  effort,  the 
effects  of  which  could  only  be  gradual. 

When  the  Conference  came  to  con- 
sider the  question,  while  there  was  much 
sympathy  felt  with  the  noble  ideas  enter- 
tained in  the  Czar's  Rescript,  it  was  found 
that  the  subject  was  of  a  very  complex 
character,  and  that  it  would  be  difficult, 
if  not  impossible,  to  reach  any  agreement 
which  would  meet  the  Czar's  desires.  The 
long  discussion  which  ensued  is  of  much 
interest,  but  I  can  indicate  something  of 
its  spirit  by  extracts  from  the  speeches  of 
the  representatives  of  Germany  and  France. 
General  von  Schwarzhoff,  in  the  course  of 
a  discourse  of  some  length,  said :  — 

..."  I  can  hardly  believe  that  among 
my  honored  colleagues  there  is  a  single 
one  ready  to  state  that  his  Sovereign,  his 
Government,  is  engaged  in  working  for  the 
inevitable  ruin,  the  slow  but  sure  annihi- 
lation, of  his  country.  I  have  no  mandate 
to  speak  for  my  honored  colleagues,  but  so 
far  as  Germany  is  concerned,  I  am  able 
27 


ARBITRATION 

to  completely  reassure  her  friends  and  to 
relieve  all  well-meant  anxiety.  The  Ger- 
man people  is  not  crushed  under  the  weight 
of  charges  and  taxes,  —  it  is  not  hanging 
on  the  brink  of  an  abyss;  it  is  not  ap- 
proaching exhaustion  and  ruin.  Quite 
the  contrary ;  public  and  private  wealth 
is  increasing,  the  general  welfare  and 
standard  of  life  are  being  raised  from  one 
year  to  another.  So  far  as  compulsory 
military  service  is  concerned,  which  is  so 
closely  connected  with  those  questions,  the 
German  does  not  regard  this  as  a  heavy 
burden,  but  as  a  sacred  and  patriotic  duty 
to  which  he  owes  his  country's  existence, 
its  prosperity,  and  its  future. 

"  I  return  to  the  propositions  of  Colonel 
Gilinsky  [Russian],  and  to  the  arguments 
which  have  been  advanced,  and  which  to 
my  mind  are  not  quite  consistent  with 
each  other.  On  the  one  hand,  it  is  feared 
that  excessive  armaments  may  bring  about 
war;  on  the  other,  that  the  exhaustion  of 
national  wealth  will  make  war  impossible. 
As  for  me,  I  have  too  much  confidence  in 
the  wisdom  of  sovereigns  and  nations  to 
share  such  fears.  On  the  one  hand,  it  is 
pretended  that  nothing  is  asked  but  things 
28 


DISARMAMENT 

which  have  existed  for  a  long  time  in  some 
countries,  and  which,  therefore,  present 
no  technical  difficulties;  on  the  other  hand, 
it  is  said  that  this  is  truly  a  very  difficult 
question,  the  solution  of  which  would  re- 
quire a  supreme  effort.  I  am  entirely  of 
the  latter  opinion.  We  shall  encounter 
insurmountable  obstacles  —  those  which 
may  be  called  technical  in  a  somewhat 
wider  sense  of  the  term.  I  believe  that  the 
question  of  effectives  cannot  be  regarded 
by  itself  alone,  disconnected  from  a  num- 
ber of  other  questions  to  which  it  is  quite 
subordinated.  Such  questions,  for  instance, 
as  the  state  of  public  instruction,  the  length 
of  time  of  active  military  service,  the  num- 
ber of  established  regiments,  the  effectives 
of  each  army  unit,  the  niimber  and  dura- 
tion of  the  drills  or  military  obligations  of 
the  reserves,  the  location  of  the  different 
army  corps,  the  railway  system,  the  num- 
ber and  situation  of  fortified  places.  In  a 
modern  army  all  of  these  belong  together 
and  form  the  national  defense  which  each 
people  has  organized  according  to  its  char- 
acter, its  history,  and  its  traditions,  taking 
into  account  its  economical  resources,  its 
geographical  situation,  and  duties  incum- 
29 


ARBITRATION 

bent  upon  it.  I  believe  that  it  would  be 
very  difficult  to  substitute  for  such  an  emi- 
nently national  task  an  international  conven- 
tion. It  would  be  impossible  to  determine 
the  extent  and  the  force  of  one  single  por- 
tion of  this  complicated  mechanism."  .  .  . 

He  then  proceeded  to  amplify  the  rea- 
sons mentioned,  and  to  maintain  that  in 
order  to  preserve  the  equilibrium  as  to 
armaments,  governments  must  be  left  free 
to  choose  the  means  best  suited  to  their 
requirements. 

M.  Bourgeois,  the  head  of  the  French 
delegation,  said :  — 

"  I  listened  with  great  care  in  the  last 
session  to  the  remarkable  speech  of  Gen- 
eral von  Schwarzhoff.  He  presented,  with 
the  greatest  possible  force,  the  technical 
objections  which,  according  to  his  views, 
prevented  the  Committee  from  adopting 
the  propositions  of  Colonel  Gilinsky.  It 
did  not,  however,  seem  to  me  that  he 
at  the  same  time  recognized  the  general 
ideas  in  pursuance  of  which  we  are  here 
united.  He  showed  us  that  Germany  is 
30 


DISARMAMENT 

easily  supporting  the  expense  of  its  mili- 
tary organization,  and  he  reminded  us  that 
notwithstanding  this,  his  country  was  en- 
joying a  very  great  measure  of  commer- 
cial prosperity.  I  belong  to  a  country 
which  also  supports  readily  all  personal  and 
financial  obligations  imposed  by  national 
defense  upon  its  citizens,  and  we  have  not 
been  hindered  in  the  increase  of  our  finan- 
cial prosperity.  But  General  von  Schwarz- 
hoff  will  surely  recognize  with  me  that  if 
in  his  country,  as  well  as  in  mine,  the 
great  resources,  which  are  now  devoted  to 
military  organization,  should,  at  least  in 
part,  be  put  to  the  service  of  peaceful 
and  productive  activity,  the  grand  total  of 
the  prosperity  of  each  country  would  not 
cease  to  increase  at  an  even  more  rapid 
rate.  .  .  . 

Gentlemen,  the  object  of  civilization 
seems  to  us  to  be  to  abolish  more  and 
more  the  struggle  for  life  between  men, 
and  to  put  in  its  stead  an  accord  between 
them  for  the  struggle  against  the  unrelent- 
ing forces  of  matter.  This  is  the  same 
thought  which,  upon  the  initiation  of  the 
Emperor  of  Russia,  it  is  proposed  that  we 
should  promote  by  international  agreement. 
31 


ARBITRATION 

If  sad  necessity  obliges  us  to  renounce  for 
the  moment  an  immediate  and  positive 
engagement  to  carry  out  this  idea,  ...  we 
shall  not  have  labored  in  vain  if  in  a  for- 
mula of  general  terms  we  at  least  indicate 
the  goal  to  be  approached,  as  we  all  hope 
and  wish,  by  all  civilized  nations." 

Notwithstanding  the  support  given  to 
the  Russian  proposition  by  France,  one 
of  the  most  martial  of  the  nations,  and  by 
various  other  governments,  the  objections 
voiced  by  the  German  delegate  were  too 
serious  to  be  overcome.  The  sentiment  of 
the  members  was  that  the  Conference 
should  avoid  forming  majority  and  mi- 
nority parties,  and  hence  nothing  should 
be  put  forth  as  its  action  which  could  not 
command  a  practically  unanimous  sup- 
port. The  most  that  could  be  accomplished, 
therefore,  was  a  general  expression  of  sen- 
timent on  the  subject  in  the  following 
declarations,  which  were  unanimously 
adopted :  — 

32 


DISARMAMENT 

"  The  Conference  is  of  opinion  that  the 
restriction  of  miHtary  charges,  which  are 
at  present  a  heavy  burden  on  the  world, 
is  extremely  desirable  for  the  increase  of 
the  material  and  moral  welfare  of  man- 
kind. 

"  The  Conference  expresses  the  wish  that 
the  Governments,  taking  into  consideration 
the  proposals  made  at  the  Conference, 
may  examine  the  possibility  of  an  agree- 
ment as  to  the  limitation  of  armed  forces 
by  land  and  sea,  and  of  our  budgets." 

While  there  was  much  regret  felt  at  the 
failure  to  adopt  some  initiative  for  the 
limitation  of  armaments,  it  was  something 
gained  that  a  public  declaration  by  such  a 
body  was  made,  that  the  present  military 
establishments  are  a  heavy  burden  on  the 
world  which  it  is  extremely  desirable  in 
the  interest  of  the  material  and  moral  wel- 
fare of  mankind  should  be  restricted,  and 
that  it  is  the  duty  of  the  governments  of 
the  earth  to  seek  to  reach  an  agreement  to 
that  end. 

33 


ARBITRATION 

It  must  be  recognized  that  the  restriction 
or  reduction  of  armaments  is  a  most  diffi- 
cult poHtical  problem.  The  system  has 
grown  up  in  recent  years  of  vast  armies 
and  formidable  navies  on  the  ground  of 
self-defense.  Never  has  the  ancient  pro- 
verb, Si  vis  pacem,  para  bellum,  had 
greater  force  than  to-day.  Under  its  prac- 
tice, for  instance,  France,  which  has  had 
practically  unbroken  peace  for  more  than 
a  generation  and  is  to-day  on  amicable 
relations  with  all  the  world,  supports  a 
much  greater  military  establishment  than 
when  Napoleon  was  at  war  with  almost  all 
the  nations  of  Europe. 

In  view  of  the  hearty  support  given  by 
our  Government  to  the  measures  proposed 
by  the  Emperor  of  Russia,  it  may  be  well 
to  consider  the  situation  in  the  United 
States,  with  reference  to  this  question  of 
the  restriction  of  armaments.  It  is  a  sub- 
ject of  congratulation  that  we  have  been  a 
peaceful,  not  a  military,  people.  Our  na- 
34 


DISARMAMENT 

tional  pride  has  been  mainly  in  our  achieve- 
ments in  the  peaceful  pursuits  of  mankind. 
It  has  been  a  source  of  regret  to  many 
of  us  that  the  fruits  of  war  have  made 
necessary  recently  a  considerable  increase 
in  our  standing  army.  Our  boast  has  been 
that  a  visitor  to  our  shores  from  the  mil- 
itary countries  of  Europe  could  traverse 
the  continent  from  ocean  to  ocean  without 
meeting  a  soldier.  Law  and  order  have 
been  enforced  by  the  civil  oflficials.  We 
desire  no  change  in  that  condition. 

Our  growing  navy  has  justly  become  the 
pride  of  the  country,  but  the  burden  of  its 
construction  and  maintenance  is  awakening 
public  attention.  At  the  last  session  of 
Congress,  a  prominent  and  conservative 
member  of  the  ruling  party  sounded  a  note 
of  warning  that  our  naval  expenditures 
had  reached  about  one  hundred  million 
dollars  annually,  and  that  with  the  vessels 
now  under  construction,  and  those  author- 
ized by  Congress,  these  expenditures  would 
35 


ARBITRATION 

go  on  increasing  in  a  rapid  ratio.i  It  has 
been  reported  in  the  pubhc  press  that  the 
Secretary  of  the  Navy  has  announced  him- 
self in  favor  of  a  navy  equal  to  that  of 
the  greatest  naval  power  in  the  world.  I 
trust  he  has  been  incorrectly  reported. 

I  cannot  believe  that  such  is  the  senti- 
ment of  our  people.  We  neither  wish  nor 
need  to  enter  into  competition  with  the 
military  nations  either  respecting  our  army 
or  our  navy.  We  can  well  await  the  com- 
pletion of  the  naval  vessels  now  in  process 
of  construction,  to  determine  whether  there 
is  any  necessity  for  a  further  increase.  We 
should  maintain  ourselves  in  the  attitude 
we  have  held  in  the  past  as  advocates  of 
peace  and  peaceful  methods  of  settling 
international  controversies,  and  our  Gov- 
ernment should  keep  itself  in  a  position  to 
be  ready  to  respond,  without  embarrass- 

^  See  Appendix  F,  for  speech  of  Hon.  Theodore  E. 
Burton,  Member  of  Congress  from  Ohio,  on  the  Naval 
Appropriation  Bill. 

36 


DISARMAMENT 

ment,  to  the  call  of  the  Hague  Conference 
in  seeking  an  agreement  to  restrict  arma- 
ments. We  should  bear  in  mind  the  senti- 
ments uttered  by  Washington :  — 

*'  My  first  wish  is  to  see  this  plague  to 
mankind  [war]  banished  from  the  earth, 
and  the  sons  and  daughters  of  this  world 
employed  in  more  pleasing  and  innocent 
amusements  than  in  preparing  implements 
and  exercising  them  for  the  destruction  of 
mankind." 

It  is  somewhat  foreign  to  the  subject 
under  consideration  to  examine  in  detail 
other  results  of  the  Conference  not  relating 
to  arbitration,  and  it  may  suffice  to  state 
that  it  agreed  upon  and  executed  two  con- 
ventions for  the  regulation  of  war  on  land 
and  at  sea,  which  embodied  the  wisest  and 
most  humane  principles  of  military  con- 
duct resulting  from  a  study  and  discus- 
sion of  these  matters  during  the  past  half 
century,  and  which  had  their  first  codifica- 
tion in  the  "Instructions  for  the  Guidance 
37 


2201S9 


ARBITRATION 

of  the  Armies  of  the  United  States,"  issued 
at  the  beginning  of  the  Civil  War.  Had 
the  Conference  accomphshed  nothing  more 
than  these  two  conventions  and  the  ac- 
companying declarations,  it  would  have 
been  entitled  to  the  claim  of  being  one  of 
the  most  useful  international  assemblies  in 
history. 


IV 

THE  ARBITRATION   CONVENTION 

WE  come  now  to  consider  the  most 
important  and  the  crowning  work 
of  the  Hague  Conference  —  the  Conven- 
tion for  the  Peaceful  Adjustment  of  Inter- 
national Differences.  It  was  reached  not 
without  much  difficulty  and  discussion,  and 
it  was  necessary,  in  order  to  secure  una- 
nimity of  action,  to  compromise  many  con- 
flicting views,  and  for  the  friends  of  arbi- 
tration to  yield  some  points  regarded  by 
them  as  of  much  importance. 

The  Preamble  to  the  convention,  in  which 
all  the  governments  represented  in  the 
Conference  joined,  contains  a  very  im- 
portant declaration  of  principles,  which 
shows  that  in  sentiment,  at  least,  the  nations 
of  the  earth  have  reached  a  high  standard 
39 


ARBITRATION 

of  international  justice  and  humanity.  It  is 
as  follows :  — 

''Animated  by  a  strong  desire  to  con- 
cert for  the  maintenance  of  the  general 
peace; 

"  Resolved  to  second  by  their  best  efforts 
the  friendly  settlement  of  international  dis- 
putes ; 

*'  Recognizing  the  solidarity  which  unites 
the  members  of  the  society  of  civilized  na- 
tions ; 

*'  Desirous  of  extending  the  empire  of 
law,  and  of  strengthening  the  appreciation 
of  international  justice; 

"  Convinced  that  the  permanent  institu- 
tion of  a  Court  of  Arbitration,  accessible 
to  all,  in  the  midst  of  the  independent 
Powers,  will  contribute  effectively  to  this 
result ; 

"Having  regard  to  the  advantages  at- 
tending the  general  and  regular  organiza- 
tion of  arbitral  procedure; 

*'  Sharing  the  opinion  of  the  august 
Initiator  of  the  International  Peace  Con- 
ference that  it  is  expedient  to  solemnly 
establish  by  an  International  Agreement 
the  principles  of  equity  and  right,  on  which 
40 


THE    ARBITRATION    CONVENTION 

repose  the  security  of  States  and  the  welfare 
of  peoples;"   etc. 


The  convention  or  treaty  is  divided  into 
four  titles,  or  general  provisions.  The  first 
consists  of  one  brief  paragraph,  and  is 
merely  declaratory,  but  it  is  important 
because  it  solemnly  commits  by  distinct 
agreement  the  powers  joining  in  the  con- 
vention "to  use  their  best  efforts  to  insure 
the  pacific  settlement  of  international  dif- 
ferences." 

The  two  following  titles  contain  pro- 
visions having  in  view  the  carrying  into 
effect  of  the  foregoing  declaratory  agree- 
ment by  means,  first,  of  a  resort  to  Good 
Offices  and  Mediation,  and,  second,  of 
International  Commissions  of  Inquiry. 
Thirteen  articles  of  the  convention  relate 
to  these  two  measures.  That  they  are  ef- 
fective for  the  purpose  for  which  they  were 
framed  is  attested  by  the  recent  resort  to  a 
Commission  of  Inquiry  by  Great  Britain 
41 


ARBITRATION 

and  Russia,  to  determine  questions  of  fact 
about  which  there  arose  such  a  difference 
as  threatened  the  amicable  relations  of  the 
two  nations. 

But,  as  the  topic  under  consideration 
has  reference  especially  to  the  Permanent 
Court  of  Arbitration,  I  pass  to  the  fourth 
title,  —  which  in  forty-seven  articles  cre- 
ates the  Court,  defines  its  jurisdiction  and 
the  principles  which  are  to  guide  it,  spe- 
cifies the  manner  in  which  its  members  are 
chosen,  the  rules  governing  its  procedure, 
its  awards,  and  other  necessary  details. 
The  full  text  of  the  convention  will  be 
found  in  Appendix  A,  to  which  the  reader 
is  referred  for  the  detailed  provisions,  and 
I  address  myself  to  some  of  their  salient 
features,  or  those  which  have  given  rise  to 
discussion  or  criticism. 

The  first  distinctive  feature  of  the  Arbi- 
tration Convention  is  that  it  has  no  com- 
pulsory stipulation.  It  declares  specifically 
in  favor  of  "a  pacific  settlement  of  inter- 
42 


THE   ARBITRATION    CONVENTION 

national  controversies,"  and  provides  meth- 
ods for  their  settlement  by  means  of  (1) 
mediation,  (2)  good  oflSces,  (3)  commis- 
sions of  inquiry,  and  (4)  a  court  of  arbitra- 
tion; but  no  nation  is  pledged  to  resort  to 
any  of  these  methods,  and,  especially,  is 
nene  compelled  to  submit  its  cause  to  the 
Hague  Permanent  Court.  This  feature  is 
regarded  by  the  most  earnest  advocates 
of  arbitration  as  a  serious  defect  of  the 
treaty,  but  it  was  early  made  apparent  in 
the  Conference  that  there  could  be  no 
agreement  for  compulsory  stipulations,  and 
it  was  even  found  diflScult  to  bring  about  a 
concurrence  on  the  convention  as  it  stands. 
The  French  delegates,  who  throughout 
the  Conference  were  the  zealous  friends  of 
arbitration,  sought  to  secure  the  adoption 
of  a  provision  investing  the  Bureau  created 
at  The  Hague  to  act  as  the  chancellery  or 
clerk's  office  of  the  Permanent  Court,  with 
an  international  mandate,  in  case  there 
should  develop  between  two  or  more  of 
43 


ARBITRATION 

the  signatory  states  one  of  the  differences 
recognized  as  being  a  proper  subject  for 
arbitration,  to  remind  the  disputing  par- 
ties of  the  provisions  of  the  convention  for 
arbitration.  Even  this  apparently  harmless 
provision  met  with  the  opposition  of  one  of 
the  Great  Powers,  and  had  to  be  omitted. 

The  sentiment,  however,  in  favor  of 
compulsory  arbitration  was  so  strong  that 
an  article  was  inserted  in  the  convention 
reserving  the  right  to  any  of  the  signatory 
powers  to  conclude  general  or  special 
agreements,  extending  the  obligation  to 
submit  controversies  to  arbitration  in  all 
cases  which  they  consider  suitable  for  such 
submission.  It  is  a  happy  augury  for  the 
eventual  recognition  of  the  duty  to  submit 
all  international  disputes  to  arbitration, 
to  note  that  treaties  of  the  character  in- 
dicated have  been  already  entered  into 
between  a  number  of  the  leading  powers 
of  Europe. 

France    has    the    honor    of    taking  the 
44 


THE    ARBITRATION    CON\^ENTION 

initiative  in  this  new  and  advanced  move- 
ment. In  October  of  last  year  its  govern- 
ment entered  into  a  treaty  with  that  of 
Great  Britain,  stipulating  for  a  period  of 
five  years  to  submit  a  certain  specified 
class  of  cases  to  the  Hague  Tribunal;  ^ 
similar  conventions  have  been  made  by 
each  of  them  separately  with  other  Euro- 
pean powers ;  and  others  of  these  powers 
have  united  in  identical  conventions.  It 
is  gratifying  to  know  that  as  a  step  in 
the  same  direction,  the  Secretary  of  State, 
Mr.  Hay,  has  consulted  the  Senate,  as  the 
coordinate  branch  of  the  treaty-making 
power,  on  the  subject,  and  it  is  confidently 
expected  that  at  the  next  session  of  the 
Senate  the  President  of  the  United  States 
will  submit  to  that  body  for  approval  arbi- 
tration treaties  with  a  number  of  nations, 
with  provisions  similar  to  those  entered  into 
between  the  European  governments. 

^  For  full  text  of  the  Anglo-French  treaty,  see  Appen- 
dix B. 

45 


ARBITRATION 

The  Hague  convention  recognizes  two 
classes  of  controversies  as  suitable  for 
submission  to  the  Hague  Court,  to  wit: 
questions  of  a  judicial  character  and  those 
regarding  the  interpretation  or  application 
of  international  treaties.  The  article  of 
the  arbitration  treaty  between  France  and 
Great  Britain,  and,  with  two  exceptions, 
the  other  European  powers  just  alluded 
to,  is  as  follows :  — 

"  Differences  of  a  judicial  order,  or  rela- 
tive to  the  interpretation  of  existing  treaties 
between  the  two  Contracting  Parties,  which 
may  arise,  and  which  it  may  not  have  been 
possible  to  settle  by  diplomacy,  shall  be 
submitted  to  the  Permanent  Court  of 
Arbitration  established  by  the  Convention 
of  July  29,  1899,  at  The  Hague,  on  condi- 
tion, however,  that  neither  the  vital  inter- 
ests, nor  the  independence  or  honour  of  the 
two  Contracting  States,  nor  the  interest  of 
any  State  other  than  the  two  Contracting 
States,  are  involved." 

While  this  stipulation  is  a  step  in  advance 
of   the  Hague  convention  in  that  it  makes 
46 


THE   ARBITRATION   CONVENTION 

arbitration  compulsory,  it  is  a  qualifica- 
tion or  limitation  of  that  treaty  in  that  it 
excepts  from  the  stipulation  such  of  the 
two  classes  of  cases  as,  in  the  judgment  of 
the  contracting  parties,  involve  the  vital 
interests,  the  independence,  or  the  honor 
of  either  state.  This  reservation  raises  the 
important,  broad,  and  difficult  question  of 
what  questions  are  proper  for  submission 
to  international  arbitration.  Questions  in- 
volving the  independence  of  a  sovereign 
state  may  not  be  difficult  of  determination, 
but  the  "vital  interests"  of  a  state,  or  its 
"national  honor,"  may  become  very  vague 
or  elastic,  and  dependent  in  great  measure 
upon  the  temperament  or  condition  of  the 
authority  having  the  right  to  determine  or 
allege  them. 

In  the  interest  of  the  peace  of  the  nations, 
it  is  of  the  utmost  importance  that  the  ex- 
ceptions to  arbitral  submission  be  as  few 
and  restricted  as  possible.  It  is  the  aim  of 
the  most  devoted  friends  of  the  cause  that 
47 


ARBITRATION 

the  nations  may  ultimately  reach  the  po- 
sition where  they  will  agree  to  submit  all 
international  controversies,  without  excep- 
tion, to  a  peaceful  method  of  adjustment. 
There  have  been  some  recent  treaties  and 
notable  declarations  emanating  from  im- 
portant bodies  to  that  effect.  The  jBrst 
conference  of  the  American  States,  embra- 
cing all  the  independent  countries  of  the 
hemisphere,  which  assembled  in  Washing- 
ton in  1890,  framed  and  recommended  the 
adoption  of  an  arbitration  treaty,  which 
contained  the  stipulation  that  "the  sole 
question  which  any  nation  is  at  liberty  to 
refuse  to  arbitrate  is  a  question  which 
may  imperil  its  independence."  In  closing 
the  deliberations  of  that  conference,  its  pre- 
sident, James  G.  Blaine,  who  by  some 
has  been  charged  with  aggressive  states- 
manship, referring  to  this  arbitration 
treaty,  said:  "We  hold  up  this  new  Magna 
Charta,  which  abolishes  war  and  substi- 
tutes arbitration  between  the  American 
48 


THE    ARBITRATION    CONVENTION 

republics,  as  the  first  and  great  fruit  of  the 
International  American  Conference." 

The  Washington  Conference  on  In- 
ternational Arbitration,  held  in  January, 
1904,  was  a  distinguished  and  representa- 
tive body  of  men  in  public  life,  in  the 
professions,  the  industries,  and  commerce. 
Its  committee  on  resolutions  was  composed 
of  two  of  the  American  members  of  the 
Hague  Court,  five  ex-ambassadors  and 
ministers,  three  of  the  first  lawyers  in  the 
country,  and  other  able  men.  The  subject 
of  the  reservations  or  exceptions  proper  to 
be  made  in  arbitration  treaties  was  fully 
considered,  and  they  reported  through 
their  chairman,  Judge  George  Gray,  that 
it  was  the  duty  of  the  United  States  to  enter 
into  treaties  with  Great  Britain  and  other 
powers  for  the  submission  to  the  Hague 
Permanent  Court  or  some  special  tribunal 
of  ''all  differences  which  they  may  fail  to 
adjust  by  diplomatic  negotiation." 

That  this  position  is  not  chimerical  is 
49' 


ARBITRATION 

shown  by  the  fact  that  two  of  the  leading 
nations  of  South  America,  Chile  and  Ar- 
gentina, have  united  in  a  treaty  binding 
themselves  to  submit  all  controversies  be- 
tween them,  not  susceptible  of  diplomatic 
settlement,  to  arbitration,  except  questions 
involving  their  independence.  Following 
the  movement  of  Great  Britain  and  other 
European  countries  for  compulsory  condi- 
tional arbitration,  as  already  noticed,  the 
c/  kingdoms  of  the  Netherlands  and  Den- 
mark, in  February,  1904,  entered  into  a 
treaty  pledging  themselves  "to  submit  to 
the  Permanent  Court  of  Arbitration  [at 
The  Hague]  all  mutual  differences  and 
disputes  that  cannot  be  solved  by  means  of 
a  diplomatic  channel."  ^ 

The  arbitration  treaties  now  in  process 
of  negotiation  by  Secretary  Hay  with 
European  powers  are  understood  to  be 
similar  in  their  terms  to  the  treaty  between 

*  For  full  text  of  the  Netherlands-Denmark  treaty,  see 
Appendix  C. 

50 


THE   ARBITRATION    CONVENTION 

Great  Britain  and  France,  containing  the 
exceptions  cited.  While  they  do  not  reach 
the  high  ideal  fixed  by  the  Washington 
Conference  and  attained  by  Chile  and  Ar- 
gentina, and  the  Netherlands  and  Den- 
mark, such  treaties  are  an  important  step 
in  advance  of  the  Hague  arbitration  con- 
vention and  in  the  direction  of  the  ideal  of 
the  advocates  of  universal  peace.  If,  as 
seems  to  be  the  case,  the  Great  Powers  of 
Europe  cannot  be  brought  to  accept  the 
form  of  convention  entered  into  between 
the  Netherlands  and  Denmark,  Secretary 
Hay  should  be  commended  and  supported 
in  his  action  in  joining  the  Great  Powers 
in  the  conditional  compulsory  treaties  to 
which  they  have  given  their  assent.  These 
treaties  have  a  duration  of  only  five  years, 
and  we  may  cherish  the  hope  that  at  the 
date  of  tl^ir  expiration  the  public  sentiment 
of  the  world  may  be  such  that  they  may  be 
renewed  with  a  broader  scope  of  arbitration. 
The  national  honor  is  a  matter  which 
51 


ARBITRATION 

our  first  impulse  of  patriotism  would  decide 
was  beyond  the  province  of  arbitration, 
but  a  more  dispassionate  consideration 
will  lead  us  to  see  that  it  is  not  always  so. 
In  the  heat  of  the  dispute  over  what  are 
known  as  the  "Alabama  Claims,"  involving 
important  questions  of  international  law 
and  high  state  policy,  when  the  American 
minister  in  London  proposed  arbitration, 
Lord  Russell  replied :  — 

*'  It  appears  to  her  Majesty's  government 
that  neither  of  these  questions  could  be 
put  to  a  foreign  government  with  any  re- 
gard to  the  dignity  and  character  of  the 
British  Crown  and  the  British  nation. 
Her  Majesty's  government  are  the  sole 
guardians  of  their  own  honour  .  .  .  and 
must  therefore  decline  either  to  make 
reparation  and  compensation  ...  or  to 
refer  the  question  to  any  foreign  state." 

When,  however,  the  passions  o^the  hour 
had  passed,  the  British  government  saw 
how  unwise  it  was  to  allow  an  attitude  so 
sensitive  and  unsubstantial  as  the  so-styled 

52 


THE   ARBITRATION    CONVENTION 

"national  honor"  to  obstruct  a  peaceful 
settlement  of  its  controversies  with  a  kin- 
dred nation,  and  the  Treaty  of  Washington 
of  1871  brought  forth  the  Geneva  Arbi- 
tration, so  beneficent  in  its  results  for  both 
nations  and  the  world.  A  century  and  less 
ago,  public  social  sentiment  in  England 
and  America  demanded  that  a  personal 
affront,  supposed  or  real,  should  be  atoned 
for  by  the  blood  of  the  aggressor,  but  the 
real  gentleman  of  English  and  American 
society  of  to-day  leaves  the  vindication  of 
his  honor  to  the  courts  of  justice  or  public 
opinion.  There  is  no  reason  why  the  same 
course  should  not  be  pursued  by  nations. 
Mr.  James  Bryce,  in  discussing  the  article 
of  the  Anglo-French  treaty  cited  by  me, 
says : — 

"The  exception  of  'honour'  made  in  the 
treaty  just  quoted  is  of  very  doubtful  merit, 
because  questions  of  so-called  national 
honour  are  often  just  the  questions  which 
most  need  to  be  referred  to  arbitration, 
53 


ARBITRATION 

inasmuch  as  they  are  those  which  a  nation 
finds  it  hardest  to  recede  from  when  it  has 
once  taken  up  a  position,  so  that  the  friendly 
intervention  of  a  third  party  is  especially 
valuable.  .  .  . 

"The  value  of  arbitration,  or  of  con- 
ciliation by  a  third  party,  lies  not  merely 
in  its  providing  a  means  of  determining  a 
diflficult  issue  of  law  or  fact,  but  in  its 
making  it  easy  for  the  contracting  parties 
to  abate  their  respective  pretensions  with- 
out any  loss  of  dignity." 

In  the  treaty  of  compulsory  arbitration 
between  Mexico  and  Spain  of  1902,  "na- 
tional independence  and  honor"  were 
excepted;  but  an  article  of  the  treaty  set 
forth  what  are  not  to  be  held  as  embracing 
these  exceptions. 1 

It  is  asserted  that  many  political  ques- 
tions are  not  suitable  subjects  for  submis- 
sion to  arbitration.  The  questions  which 
brought  on  the  Russo-Japanese  war  have 
been  cited  among  those  which  are  not 
arbitrable,  and  likewise  the  Monroe  Doc- 

^  For  the  Mexican-Spanish  treaty,  see  Appendix  D. 
54 


THE   ARBITRATION   CONVENTION 

trine.  None  of  the  leading  nations  are  pre- 
pared to-day  to  enter  into  a  treaty  of  un- 
conditional arbitration,  but  the  oftener  they  c^ 
submit  their  differences  to  arbitration,  the 
nearer  they  approach  that  goal.  Great 
Britain  and  the  United  States  have  since 
the  War  of  1812  submitted  all  their  many 
matters  of  dispute  to  a  peaceful  method 
of  adjustment.  An  examination  of  their 
numerous  arbitration  treaties,  embracing 
a  great  variety  of  subjects,  will  show  that 
no  question  can  in  the  future  arise  between 
them  which  will  more  seriously  involve 
their  territory,  the  honor  of  the  countries, 
their  vital  interests,  or  their  independence, 
than  those  which  have  already  been  sub- 
mitted to  arbitration. 

Hence,  so  far  as  Great  Britain  is  con- 
cerned, it  may  be  safely  asserted  that  the 
Washington  Conference  committed  no  error 
in  recommending  that  the  United  States 
enter  with  that  power  into  a  treaty  of 
unconditional  arbitration.  If,  after  nearly 
55 


ARBITRATION 

a  century  of  peaceful  settlement  of  their 
disputes,  these  two  countries  can  make 
such  a  convention,  they  should  hardly  be 
styled  dreamers  or  enthusiasts  who  look 
forward  to  the  time  when  all  nations  of  the 
earth,  through  peaceful  intercourse  and 
forbearance,  will  find  a  better  method  of 
adjusting  their  differences  than  by  the 
arbitrament  of  war. 

In  the  Hague  Conference  the  question 
arose  as  to  what  stipulation  should  be 
inserted  in  the  treaty  guaranteeing  the 
enforcement  of  the  award  of  a  court  of 
arbitration.  In  this  instance,  as  when  the 
subject  of  compulsory  arbitration  was 
under  discussion,  it  was  found  that  if  con- 
straint was  to  be  applied  to  a  recalcitrant 
power,  it  would  have  to  be  through  some 
kind  of  international  military  force,  and 
the  delegates  were  in  no  frame  of  mind  to 
consider  such  an  alternative.  Besides,  it 
was  cited  that  during  the  many  arbitration 
cases  of  the  past  century,  a  sense  of  equity 
56 


THE   ARBITRATION  CONVENTION 

and  the  force  of  public  opinion  had  been 
sufficient  to  secure  acceptance  of  the  award ; 
and  the  Conference  regarded  it  as  suffi- 
ciently effective  to  insert  an  article  declar- 
ing that  "the  agreement  of  arbitration 
implies  the  obligation  to  submit  in  good 
faith  to  the  decision  of  the  arbitral  tribu- 
nal." 


THE  HAGUE   COURT 

ONE  of  the  most  important  questions 
discussed  by  the  Peace  Conference, 
in  connection  with  the  arbitration  con- 
vention, was  whether  its  provisions  should 
be  carried  out  through  provisional  or  special 
tribunals,  or  whether  a  permanent  court 
should  be  created  for  that  purpose. 

The  Interparliamentary  Union,  a  vol- 
untary organization  of  members  of  the 
national  legislative  bodies  of  the  nations, 
having  for  its  object  the  promotion  of 
international  arbitration,  at  its  meeting  in 
Holland  in  1894,  adopted  a  declaration  in 
favor  of  a  permanent  court  of  arbitration. 
In  1895,  at  the  first  meeting  of  the  Mohonk 
Conference  on  international  arbitration,  a 
body  which  has  exercised  a  most  salutary 
influence  upon  public  sentiment.  Dr.  Ed- 
58 


THE  HAGUE  COURT 

ward  Everett  Hale  introduced  a  resolution 
in  favor  of  the  establishment  of  a  perma- 
nent international  court  of  arbitration. 
The  resolution  was  referred  to  a  committee 
of  prominent  lawyers  to  study  and  report 
upon  the  subject;  and  at  the  next  annual 
meeting  of  the  Conference,  the  resolution 
was  unanimously  adopted.^ 

When  the  Hague  Peace  Conference 
was  called,  the  United  States  was  from 
the  beginning  in  favor  of  the  creation  of 
a  permanent  court.  In  1896,  in  addition 
to  the  declaration  of  the  Mohonk  Confer- 
ence, the  New  York  State  Bar  Association 

^  The  Conference  in  its  publi«  declaration  said :  "  We 
earnestly  call  upon  statesmen,  ministers  of  every  faith, 
the  newspapers  and  periodical  press,  colleges  and  schools, 
chambers  of  commerce  and  boards  of  trade,  organizations 
of  workingmen,  and  upon  all  good  men  and  womeil,  to 
exert  their  influence  in  favor  of  this  movement,  both  in 
making  known  to  the  President  of  the  United  States  their 
desire  for  a  'permanent  tribunal,  and  in  helping  to  create 
a  larger  public  sentiment  against  war,  which  shall  be  an 
efficient  and  constant  support  of  the  new  judicial  system 
thus  to  be  founded." 

59 


ARBITRATION 

laid  before  the  President  a  memorial  set- 
ting forth  a  permanent  tribunal  as  the 
essential  feature  of  any  general  scheme 
of  arbitration,  and  the  delegates  of  the 
United  States  to  the  Conference  had  been 
instructed  to  make  this  a  cardinal  point  in 
their  propositions.  But  the  honor  fell  to 
the  chairman  of  the  British  delegation, 
Lord  Pauncefote,  to  become  its  special 
champion  in  the  deliberations.  At  one  of 
the  early  sessions  of  the  Conference  he 
introduced  the  subject  with  the  following 
remarks :  — 

"  Mr.  President:  Permit  me  to  inquire 
whether,  before  entering  in  a  more  detailed 
manner  upon  our  duties,  it  would  not  be 
useful  and  opportune  to  sound  the  Com- 
mittee on  the  subject  of  a  question  which 
in  my  opinion  is  the  most  important  of  all, 
namely:  the  establishment  of  a  permanent 
international  tribunal  of  arbitration,  such 
as  you  have  mentioned  in  your  address. 
Many  proposed  codes  of  arbitration  and 
rules  of  procedure  have  been  made,  but 
60 


THE   HAGUE    COURT 

up  to  the  present  time  the  procedure  has 
been  regulated  by  the  arbitrators,   or  by 
general  or  special  treaties.     Now  it  seems 
to  me  that  new  codes  and  regulations  of 
arbitration,  w^hatever  may  be  their  merit, 
do  not  greatly  advance  the  grand  cause 
for  which  we  are  gathered  here.     If  it  is 
desired  to  take  a  step  in  advance,  I  am  of 
the  opinion  that  it  is  absolutely  necessary 
to    organize    a    permanent    international 
tribunal,  which  can  be  called  together  at 
the  request  of  contending  nations.     This 
principle   once   established,   I   believe   we 
shall  not  have  any  difficulty  in  agreeing 
upon  details.      The  necessity  for  such   a 
tribunal  and  the  advantages  which  it  con- 
fers, as  well  as  the  encouragement  and  in 
fact  the  prestige  which  it  will  give  to  the 
cause  of    arbitration,   have    been    demon- 
strated with  as  much  eloquence  as  force 
and   clearness   by   our   distinguished   col- 
league,   M.    Descamps.  ...  I    have    no 
more  to  say  upon  this  subject,  but  I  would 
be   very   grateful   to   you,   Mr.    President, 
if  before  proceeding  any  further  you  would 
consent  to  elicit  the  ideas  and  sentiments 
of   the    Committee   upon    the    proposition 
which  I  have  the  honor  of  submitting  to 
61 


ARBITRATION 

you,  touching  the  estabhshment  of  a  per- 
manent international  tribunal  of  arbitra- 
tion." 

This  brief  speech,  it  is  recorded,  struck 
the  keynote  of  the  subsequent  discussion. 
It  was  antagonized  by  Germany,  but  the 
sentiment  was  so  strongly  in  its  favor  that 
the  German  delegates  were  induced  to 
withdraw  their  objection,  and  provision 
was  made  in  the  convention  for  a  Perma- 
nent International  Court.  This  action  was 
a  source  of  much  gratification  to  the 
advocates  of  international  arbitration,  who 
for  centuries  had  looked  forward  with 
hope  to  the  establishment  by  the  nations 
of  the  earth  of  some  form  of  congress  or 
court,  which  should  have  a  continuous 
existence  and  be  clothed  with  functions  for 
the  preservation  of  peace. 
i.  The  provisions  of  the  convention  are 
^hat  each  of  the  signatory  powers  shall 
appoint  for  a  term  of  six  years  as  members 
of  the  Permanent  Court  not  more  than 
62 


THE  HAGUE  COURT 

four  persons,  "of  recognized  competence 
in  questions  of  international  law,  enjoying 
the  highest  moral  reputation."  These 
persons  constitute  a  Permanent  Court  of 
Arbitration,  accessible  at  all  times  and  act- 
ing in  accordance  with  the  prescribed 
rules  of  procedure. 

The  members  of  the  Court*  thus  con- 
stituted do  not  sit,  however,  as  a  collective 
body,  but  when  two  or  more  nations  have 
a  case  to  submit  to  arbitration,  they  select 
by  mutual  agreement  one,  three,  or  five 
members,  as  may  be  stipulated,  from  the 
persons  constituting  the  Court,  who  will 
act  as  the  tribunal  to  try  the  case.  So  that 
it  may  happen  that  some  members  of  the 
Court  may  never  be  called  upon  to  dis- 
charge the  functions  of  a  judge. 

It  was  thought  wise  not  to  restrict  the 
liberty  of  action  of  the  arbitrating  nations, 
and  they  have  been  left  free  to  select  the 
judges  from  the  permanent  panel,  so  to 
speak,  of  the  Court.  Likewise,  though  The 
63 


ARBITRATION 

Hague  is  designated  as  the  place  where 
the  Court  shall  hold  its  sessions,  another 
place  may  be  designated  by  agreement  of 
parties  litigant.  Also,  while  detailed  rules 
of  procedure  are  provided  in  the  conven- 
tion, these  may  be  varied  by  special  agree- 
ment of  the  parties. 

The  convention  contains  a  provision 
(Article  52)  that  the  award  of  the  Tribunal 
shall  be  accompanied  by  a  statement  of  the 
reasons  upon  which  it  is  based,  but  this 
article  was  not  adopted  without  serious 
objection  in  the  Conference.  It  was  recog- 
nized that  much  advantage  would  be  de- 
rived from  the  opinions  of  judges  of  such 
high  authority  in  the  creation  of  a  body 
of  international  jurisprudence,  but  it  was 
urged  that  the  opinions  might  contain 
criticism  of  the  litigating  parties,  or  other 
powers,  harmful  and  unnecessary.  This 
surmise  became  a  reality  when,  during 
the  present  year,  the  president  of  the  Tri- 
bunal in  the  Venezuela  arbitration,  who 
64 


THE  HAGUE  COURT 

was  a  Russian,  made  some  utterances 
which  were'  seriously  resented  by  the  Jap- 
anese. 

The  question  of  the  finahty  of  the  award 
was  much  debated  in  the  Conference.  It 
was  contended  that  a  rehearing  of  a  case 
once  decided  would  diminish  the  moral 
authority  of  the  Tribunal  and  the  weight 
otherwise  given  to  its  first  decision.  The 
American  proposition  was  that  a  hearing 
should  be  granted  "upon  presentation  of 
evidence  that  the  judgment  contained  a 
substantial  error  of  fact  or  of  law."  The 
practice  in  the  United  States  sustained 
such  a  provision,  and  its  government  had 
had  experience  which  showed  that  some 
provision  for  rehearing  was  desirable.  For 
instance,  in  the  Mexican  claims  commis- 
sion, the  umpire,  Sir  Edward  Thornton, 
had  decided  that  when  his  decision  was 
once  rendered,  his  relation  to  the  case 
was  terminated,  and  that  even  if  fraud 
was  shown  to  have  been  practiced  upon 
65 


ARBITRATION 

the  commission,  the  award  could  not  be  re- 
opened, but  rehef  would  have  to  be  sought 
by  a  direct  appeal  to  the  government  con- 
cerned. The  Conference  finally  agreed 
upon  a  provision  that  a  rehearing  should 
be  had  "only  on  the  discovery  of  new  facts 
of  such  a  character  as  to  exercise  a  decisive 
influence  upon  the  judgment,  and  which 
at  the  time  of  the  judgment  were  unknown 
to  the  Tribunal  itself  and  to  the  parties 
demanding  the  rehearing." 

The  convention  contains  a  stipulation 
that  the  proceedings  in  a  case  should 
embrace  oral  argument  of  counsel  before 
the  Tribunal.  The  prevailing  practice  in 
arbitration  during  the  last  century  was  to 
accompany  the  documentary  evidence  in 
the  case  with  a  printed  or  written  argument 
only.  The  Geneva  arbitration  of  1872  gave 
the  right  to  the  tribunal  to  call  for  oral 
argument  on  any  specific  question,  and  a 
brief  oral  discussion  was  accordingly  had. 
In  the  Fur  Seal  arbitration  at  Paris  in  1893, 
66 


THE  HAGUE  COURT 

the  treaty  stipulated  for  general  oral  argu- 
ment, and  several  weeks  were  occupied  by 
counsel;  and  a  similar  practice  was  ob- 
served in  the  Venezuela  boundary  arbitra- 
tion at  Paris  in  1899.  The  Hague  conven- 
tion recognizes  this  as  the  proper  practice. 
Its  effect  is  to  considerably  prolong  the 
sessions  of  the  Tribunal,  but  it  affords  the 
litigating  parties  a  more  satisfactory  eluci- 
dation of  the  questions  at  issue. 

Having  reviewed  the  more  important 
provisions  of  the  Hague  arbitration  con- 
vention, I  pass  to  a  consideration  of  the 
practical  working  of  the  Permanent  Court 
organized  under  it. 

When  the  Hague  Conference  adjourned, 
there  was  a  widespread  belief  that  it  had 
accomplished  little  towards  the  prevention 
of  war.  It  had  failed  to  agree  upon  either 
the  restriction  or  the  diminution  of  the  vast 
armaments  which  were  oppressing  the 
nations  and  threatening  the  peace  of  the 
world.  The  arbitration  convention,  which 
67 


ARBITRATION 

left  it  purely  optional  with  the  nations  to 
observe  its  provisions,  did  not  impress  the 
general  public  as  of  much  practical  value; 
and  there  was  a  skeptical  feeling  that  no 
powerful  nation  would  ever  invoke  the 
services  of  the  Permanent  Court  to  save 
it  from  an  armed  conflict  with  another 
state. 

However,  when  the  convention  was  sub- 
mitted to  the  governments  to  ratify  the 
action  of  the  delegates,  no  one  of  them 
cared  to  reject  it.  The  friends  of  arbitration 
were  reassured  when  the  intelligence  flashed 
across  the  Atlantic  that  the  Senate  of  the 
United  States  had  unanimously  approved 
it,  and  that  the  President  had  promptly 
proclaimed  it  to  the  world.  The  other 
signatory  nations  took  similar  action.  The 
convention  thus  bet^oming  a  completed 
instrument,  the  respective  governments 
appointed  from  their  most  distinguished 
public  men  and  able  jurists  the  members  of 
the  Permanent  Court.  The  world's  query 
68 


THE  HAGUE  COURT 

then  was  —  What  nations  will  now  come 
forward  to  submit  to  the  Court  a  contro- 
versy insolvable  by  diplomacy  ? 

It  is  a  matter  of  pride  for  this  Continent 
that  the  two  greatest  republics  of  America 
should  be  the  first  to  invoke  the  services 
of  the  Hague  Court.  The  Supreme  Court 
of  the  United  States,  which  is  the  nearest 
approach  to  that  Tribunal,  had  to  wait  a 
longer  time  after  its  creation  before  it 
heard  its  first  case.  The  Pious  Fund  claim 
was  one  which  had  vexed  the  govern- 
ments of  the  United  States  and  Mexico 
for  nearly  half  a  century,  and  had  baflSied 
the  efforts  of  well-disposed  diplomacy. 
Having  faith  in  the  efficacy  of  the  Court, 
and  obedient  to  the  spirit  of  the  arbitration 
convention  of  which  they  were  signatory 
parties,  they  entered  into  an  agreement  to 
submit  the  claim  to  that  Court.  The  case 
was  heard  under  satisfactory  conditions, 
a  decision  rendered,  which  has  been  ac- 
cepted by  both  parties,  and  that  source  of 
69 


ARBITRATION 

difference  between  the  neighboring  repub- 
hes  has  been  forever  removed. 

But,  said  the  skeptics,  the  case  of  Mexico 
was  one  involving  merely  a  money  claim; 
the  test  will  come  when  nations  heated 
to  the  point  of  war  are  called  upon  to 
yield  their  pretensions  to  the  decision  of 
the  Hague  Court.  Such  a  case  was  not 
long  delayed.  Three  of  the  most  powerful 
nations  of  Europe  were  soon  engaged  in 
flagrant  hostilities  against  a  weak  American 
state.  Venezuela,  though  not  a  party  to 
the  Hague  convention,  appealed  to  it  for 
the  determination  of  the  question  at  issue. 
The  allied  powers.  Great  Britain,  Germany, 
and  Italy,  in  disregard  of  the  Hague 
arbitration  convention,  to  which  they  were 
parties,  turned  to  the  President  of  the 
United  States  and  asked  him  to  become 
the  sole  arbiter  of  the  controversy.  It  was 
a  high  mark  of  confidence  in  the  American 
chief  magistrate,  and  very  flattering  to 
him  personally,  but  his  sense  of  duty  to  the 
70 


THE   HAGUE    COURT 

world  was  greater  than  his  pride  of  person, 
and  he  pointed  to  the  Hague  Court  and 
decHned  the  offer.  In  that  act  President 
Roosevelt  rendered  a  greater  service  to  the 
cause  of  peace  and  international  arbitra- 
tion than  any  other  man  of  his  generation. 
The  motive  which  animated  his  conduct  is 
well  stated  in  his  annual  message  of  1903 
to  the  Congress  of  the  United  States :  — 

"  It  seemed  to  me  to  offer  an  admirable 
opportunity  to  advance  the  practice  of  the 
peaceful  settlement  of  disputes  between 
nations,  and  to  secure  for  the  Hague  Tribu- 
nal a  memorable  increase  of  its  practical  im- 
portance. The  nations  interested  in  the  con- 
troversy were  so  numerous,  and,  in  many 
instances,  so  powerful,  as  to  make  it  evident 
that  beneficent  results  would  follow  from 
their  appearance  at  the  same  time  before 
the  bar  of  that  august  tribunal  of  peace." 

The  action  of  President  Roosevelt  led 
to  the  appearance  at  The  Hague  of  a  dis- 
tinguished array  of  nations.     Russia  and 
Austria   were   represented  in   the   Tribu- 
71 


ARBITRATION 

nal,^  while  Venezuela,  Great  Britain,  Ger- 
many, Italy,  France,  Spain,  Belgium,  the 
Netherlands,  Sweden  and  Norway,  the 
United  States,  and  Mexico  appeared  as  in- 
terested parties. 

The  decision  of  the  Tribunal,  conceding 
preferential  treatment  to  the  allied  powers 
who  sought  to  enforce  by  war  their  claims 
against  Venezuela,  has  been  severely  criti- 
cised, but  the  general  results  are  recognized 
as  of  great  value.  Mr.  MacVeagh,  of  the 
American  counsel,  while  questioning  the 
soundness  of  the  decision,  has  said :  — 

"  There  can,  however,  be  no  manner  of 
doubt  that  the  arbitrators  acted  according 
to  the  best  light  they  had,  nor  can  there  be 
any  doubt  that  the  presence  for  the  first 
time  of  so  many  great  nations  at  the  bar 
of  the  Tribunal  outweighs  in  usefulness 
any  adverse  result  of  the  decision  itself." 

^  The  terras  "  Court "  and  "  Tribunal  "  seem  to  be 
used  interchangeably  in  the  convention,  but  "  Tribunal  " 
is  usually  applied  to  the  body  selected  from  the  panel  of 
the  Court  to  hear  and  determine  a  particular  case. 

72 


THE  HAGUE  COURT 

It  appears  that  the  Tribunal  based  its 
decision  upon  the  finding  that  Venezuela 
promised  the  allies  that  if  they  would 
cease  their  hostile  operations,  they  should 
have  a  priority  of  claim  upon  the  customs 
receipts,  and  it  did  not  pass  upon  the 
ethical  question  urged  by  the  interested 
peaceful  powers.  Hon.  J.  M.  Dickinson, 
whose  views  are  of  special  value  because 
of  his  experience  as  senior  counsel  at 
London  before  the  Alaskan  Boundary 
Commission  and  his  active  practice  in  the 
highest  courts  of  the  United  States,  in 
discussing  this  matter  has  said :  — 

"If  the  decision  were  wrong,  this  fur- 
nishes no  just  ground  for  saying  that  the 
future  usefulness  of  the  Court  is  impaired. 
No  one  ever  expected  infalhbility  from  any 
human  court,  and  we  do  not  think  of  abol- 
ishing our  courts  because  they  err,  as  all  of 
them  at  times  do. 

"  Under  the  corrective  influence  of  inter- 
national jurists,  unsound  doctrine  will  be 
repudiated.  This  is  more  easy  of  accom- 
73 


ARBITRATION 

plishment  by  the  Hague  Court  than  by 
any  other.  The  same  members  are  rarely 
chosen  to  sit  again.  There  will  be  a  con- 
stant change  in  judges.  As  new  cases  arise, 
not  having  any  pride  of  opinion  in  the 
decision  of  others,  they  will  the  more 
promptly  expound  as  the  law  that  which 
the  enlightenment  of  the  time  shall  de- 
mand, for  international  law  will  always 
develop  and  stand  as  the  exponent  of  such 
international  justice  and  morality  as  the 
consensus  of  nations  shall  approve."^ 

The  importance  of  the  Venezuela  case 
at  The  Hague  can  scarcely  be  exaggerated. 
The  thirteen  nations  there  represented, 
embracing  a  population  of  more  than  four 
hundred  and  fifty  millions,  the  most  en- 
lightened as  well  as  the  most  powerful  of 
the  world  in  military  establishment,  are  a 
striking  object  lesson  of  the  wisdom  and 
eSicacy  of  arbitration.  President  Roose- 
velt has  anticipated  those  results  in  such 

^  International  Arbitration,  an  Address  delivered  at 
Vanderbilt  University,  by  Hon.  J.  M.  Dickinson,  1904, 
page  23. 

74 


THE   HAGUE   COURT 

happy  language  that  I  quote  again  from 
his  message  to  Congress :  — 

"Such  an  imposing  concourse  of  nations 
presenting  their  arguments  to  and  invoking 
the  decision  of  that  high  court  of  inter- 
national justice  and  international  peace 
can  hardly  fail  to  secure  a  like  submission 
of  many  future  controversies.  The  nations 
appearing  there  will  find  it  far  easier  to 
appear  there  a  second  time,  while  no  na- 
tion can  imagine  its  just  pride  will  be 
lessened  by  following  the  example  now 
presented.  This  triumph  of  the  principle 
of  international  arbitration  is  a  subject 
of  warm  congratulation,  and  offers  a  happy 
augury  for  the  peace  of  the  world." 

The  President's  anticipation  is  being 
realized,  as  three  of  the  Powers  represented 
in  the  Venezuelan  arbitration  —  Great 
Britain,  France,  and  Germany  —  have 
united  in  an  agreement  with  Japan,  a 
signatory  party  to  the  Hague  convention, 
to  submit  to  the  Permanent  Arbitration 
Court  a  controversy  between  them  which 
has  not  yielded  to  diplomatic  negotiation; 
75 


ARBITRATION 

and  the  case  is  now  in  process  of  submis- 
sion. As  already  noted,  Great  Britain 
and  Russia  have  just  invoked  another 
provision  of  that  convention,  in  their  mu- 
tual desire  to  avoid  threatened  hostihties. 
Other  nations  will,  with  greater  frequency, 
carry  their  differences  to  The  Hague;  and 
the  Temple,  for  the  construction  of  which 
the  generous  American  citizen,  Mr.  Car- 
negie, has  provided  the  means,  bids  fair 
to  be  thronged  with  suitors  appealing  to 
reason  and  international  justice  for  the 
protection  of  their  national  rights. 

The  only  dark  cloud  which  obscures  the 
otherwise  brilliant  prospect  is  the  gigantic 
and  terrible  conflict  now  going  on  between 
Russia  and  Japan,  and  the  sad  fact  that 
although  they  were  both  signatories  of  the 
Hague  convention,  that  agreement  was  not 
efficacious  for  the  preservation  of  peace. 
The  convention  contains  an  article  which 
makes  it  the  duty  of  the  signatory  powers, 
*'in  case  a  serious  dispute  threatens  to 
76 


THE   HAGUE   COURT 

break  out  between  two  or  more  of  them, 
to  remind  these  latter  that  the  Permanent 
Court  of  Arbitration  is  open  to  them,"  and 
that  "the  advice  given  to  them,  in  the 
highest  interests  of  peace,  to  have  recourse 
to  the  Permanent  Court,  can  only  be  con- 
sidered as  an  exercise  of  good  offices,"  and 
not  as  an  offensive  act.  Although  France 
and  England,  two  of  the  most  influential 
powers  in  the  creation  of  the  Hague 
Court,  were  connected  with  the  belligerents 
by  more  than  friendly  ties,  yet  neither  of 
them,  nor  any  other  of  the  powers  so  deeply 
interested  in  the  peace  of  the  Orient,  dis- 
charged their  duty  under  Article  27  of  the 
convention  and  reminded  them  that  the 
Hague  Court  w^as  open  for  the  settlement 
of  their  controversy. 

This  is  a  discouraging  fact,  but  only 
emphasizes  the  position  to  which  I  have 
already  referred,  that  there  are  some 
questions  of  policy  and  high  politics  which, 
in  the  present  temper  of  the  nations,  can- 
77 


ARBITRATION 

not  be  adjusted  by  peaceful  methods.  This 
terrible  conflict,  however,  by  its  very  hor- 
rors and  evil  consequences  for  both  belli- 
gerents, makes  the  world  stand  aghast  and 
the  great  heart  of  humanity  demand  a 
better  method  for  the  settlement  of  inter- 
national differences  than  by  the  cruel  and 
destructive  methods  of  war.  If  this  terri- 
ble conflict  shall  bring  the  nations  to  see 
the  uselessness  of  war,  the  frightful  loss  of 
life  and  exhaustion  of  the  resources  of  two 
great  peoples  will  not  have  been  entirely 
without  benefit.  Let  us  hope,  also,  that 
even  yet  the  contending  nations  which  are 
engaged  in  this  unreasoning  strife  of  arms 
may  awake  to  their  duty  under  the  Hague 
convention,  and  leave  to  the  Permanent 
Arbitration  Court  the  final  adjustment  of 
their  differences. 


VI 

SUGGESTED    MODIFICATIONS    OF    THE 
COURT 

THE  practical  working  of  the  provisions 
of  the  Hague  convention,  as  shown 
in  the  two  cases  which  have  been  already 
dispatched  by  the  Court,  has  given  rise  to 
various  suggestions  for  some  modification 
of,  or  addition  to,  these  provisions.  Hon. 
W.  L.  Penfield,  Solicitor  of  the  United 
States  Department  of  State,  who  was  of 
counsel  for  the  United  States  in  the  hearing 
of  both  the  Pious  Fund  and  Venezuela 
cases,  has  made  some  valuable  suggestions 
in  that  direction,^  as  well  as  other  experi- 
enced jurists.  I  have  space  to  notice  these 
only  very  briefly. 

*  Some  Problems  of  International  Arbitration,  an  Ad- 
dress delivered  before  the  New  York  State  Bar  Associa- 
tion, by  Hon.  William  L.  Penfield,  1904. 
79 


ARBITRATION 

The  convention  provided  that  the  con- 
ditions under  which  powers  not  represented 
in  the  Conference  might  become  adher- 
ents to  it  should  be  determined  hereafter 
by  the  powers  which  had  already  signed  it. 
No  action  has  yet  been  taken  in  that  di- 
rection. For  this  reason,  all  the  Ameri- 
can republics,  except  the  United  States 
and  Mexico,  have  no  representation  in  the 
Hague  Court,  and  the  result  is  that  it  is  prac- 
tically a  European  tribunal.  When  these 
two  last-mentioned  nations  came  to  select 
the  judges  to  try  the  Pious  Fund  case,  they 
were  forced  either  to  select  judges  from 
among  their  own  citizens,  or  to  choose 
those  of  European  or  Oriental  nationali- 
ties. It  is  a  serious  defect  in  the  organiza- 
tion of  that  Court  that  these  numerous 
American  republics  should  be  excluded 
from  furnishing  their  quota  for  the  perma- 
nent panel.  The  Conference  contemplated 
the  desirability  of  calling  another  similar 
conference  at  no  distant  day.  Should  such 
80 


MODIFICATIONS    OF   THE    COURT 

further  conference  be  held,  it  would  doubt- 
less heal  this  defect  in  the  existing  con- 
vention. 

There  is  nothing  in  the  convention  which 
prevents  one  of  the  litigants  from  selecting 
as  a  judge  to  hear  his  case  one  of  the  mem- 
bers named  by  it  for  the  permanent  panel. 
It  has  been  a  much  disputed  question 
whether  an  interested  party  should  be 
represented  on  the  Court  by  a  judge  of 
its  own  nationality.  In  the  two  cases  thus 
far  heard  by  the  Court,  the  judges  were 
taken  from  non-interested  countries,  and 
the  weight  of  opinion  seems  to  be  in  that 
direction. 

The  propriety  of  a  member  of  the  per- 
manent panel  of  the  Court  appearing  as 
counsel  for  a  litigating  party  has  been 
seriously  questioned.  Two  of  its  members 
appeared  as  opposing  counsel  in  the  Pious 
Fund  case,  and  other  members  appeared 
in  like  capacity  in  the  Venezuela  case.  In 
the  latter  instance,  protests  against  the 
81 


ARBITRATION 

practice  were  filed  in  the  Court  by  both 
Venezuela  and  Great  Britain.  This  sub- 
ject was  fully  discussed  in  the  Conference, 
and  an  effort  was  made  to  place  in  the  con- 
vention a  prohibition  against  the  practice; 
but  while  the  general  sentiment  was  against 
the  assumption  of  the  functions  of  counsel 
by  a  member  of  the  Court,  it  was  deemed 
best  to  take  no  definite  action,  trusting 
that  the  good  sense  and  propriety  of  the 
members  of  the  Court  would  finally  evolve 
a  rule  which  would  safeguard  the  reputa- 
tion of  the  bench.  The  experience  in  the 
two  cases  heard  seems  to  call  for  a  pro- 
hibitive rule  on  the  subject. 

Attention  has  been  directed  to  the  fact 
that  the  organization  of  the  Court  is  a 
loose  one.  The  persons  are  named  by  the 
respective  governments  and  they  are  en- 
rolled as  members  of  the  Court,  but,  as 
has  been  seen,  they  may  never  be  called 
upon  to  serve  as  judges.  Yet  their  ac- 
ceptance of  the  appointment  implies  a 
82 


MODIFICATIONS    OF   THE    COURT 

readiness  to  serve  whenever  chosen.  No 
provision  is  made  for  compensation,  ex- 
cept when  the  judges  are  actually  called 
to  duty.  As  the  members  are  expected  to 
serve  whenever  invited,  without  regard  to 
the  importance  of  the  case,  it  has  been 
suggested  that  some  arrangement  should 
be  made  to  pay  them  a  reasonable  retainer. 
When  this  matter  was  before  the  Con- 
ference, it  was  considered  the  province  of 
each  government  to  determine  the  subject 
with  its  own  appointees. 

An  argument  used  against  a  resort  to 
the  Hague  Court  is  the  matter  of  expense. 
In  the  Pious  Fund  case,  the  five  judges 
were  paid  $5000  each.  To  this  expense 
was  added  that  for  counsel,  a  staff  of  clerks, 
French  and  English  stenographers,  and 
printing  the  evidence  and  arguments.  The 
objection  might  not  be  weighty  with  the 
great  nations,  but  the  expense  would  press 
heavily  against  the  smaller  states  with 
limited  resources.  It  is  a  matter  which 
83 


ARBITRATION 

commends  itself  to  the  consideration  of  the 
Great  Powers. 

The  language  to  be  used  in  the  pro- 
ceedings and  records  of  the  Tribunal  has 
been  wisely  left  by  the  convention  to  be 
fixed  by  the  parties  resorting  to  the  Tribu- 
nal. The  experience  of  the  Court  has  shown 
that  it  is  of  much  importance  that  in  the 
special  agreement  of  arbitration  in  each 
case  the  language  to  be  used  should  be 
explicitly  fixed.  French  is  the  prevailing 
tongue  used  in  the  international  assemblies 
in  Europe  and  in  diplomacy,  but  its  com- 
pulsory use  would,  in  many  cases,  work 
inconvenience  and  sometimes  serious  hard- 
ship. Its  enforcement  in  the  Hague  Tri- 
bunal would  debar  the  great  majority  of 
American  lawyers,  and  would  discourage 
the  resort  by  American  States  to  the  Court. 
English  is  now  the  language  most  largely 
prevalent  among  the  Christian  nations. 

In  the  Pious  Fund  case,  the  minutes  of 
the  proceedings  and  the  award  were  in 
84 


MODIFICATIONS    OF   THE    COURT  ' 

French,  the  oral  language  of  the  Tribunal 
was  English,  and  both  French  and  English 
were  used  in  the  oral  arguments ;  the 
Parisian  stenographer,  however,  confessed 
his  inability  to  accurately  report  some  of 
the  arguments  spoken  in  French  with  a 
Spanish  accent.  In  the  Venezuela  case,  it 
was  agreed  that  the  English  language 
should  be  used  in  the  proceedings,  but  that 
the  arguments  might  be  made  in  any  other 
language.  No  stipulation  was  made  that 
the  judges  should  be  familiar  with  the 
English  language,  as  it  seemed  unnecessary, 
in  view  of  the  provision  as  to  the  language 
of  the  proceedings ;  but  it  resulted  that 
some  of  the  members  of  the  Tribunal  were 
not  able  to  speak  English  fluently,  and 
out  of  consideration  for  them  it  was  agreed 
that  the  language  used  orally  by  the  Tri- 
bunal should  be  the  French. 

Notwithstanding  the  defects  which  have 
been  developed  in  the  condition  and  prac- 
tice of  the  Hague  Court,  some  of  which  I 
85 


ARBITRATION 

have  briefly  noted,  it  is  gratifying  to  see 
that  it  has  proved  so  well  adapted  for  the 
exalted  purpose  for  which  it  was  created, 
and  that  its  imperfections,  which  are  not 
serious,  may  easily  be  cured. 


VII 

SPECIAL  AND  JOINT  COMMISSIONS 

UP  to  this  point  we  have  been  consider- 
ing the  adjustment  of  international 
differences  by  a  resort  to  the  Hague 
Court.  But  the  nations  which  are  parties 
to  the  Hague  arbitration  convention  are 
not  precluded  from  the  adoption  of  some 
other  method  for  the  amicable  adjustment 
of  their  controversies.  It  may  be  found  less 
expensive  and  more  expeditious,  in  cases  of 
minor  importance,  to  resort  to  other  chan- 
nels than  the  Hague  Court.  So  also  there 
may  be  exceptional  reasons  why  appeal  to 
this  Court  may  not  seem  best.  The  fact 
already  discussed,  of  questions  which  gov- 
ernments are  not  willing  to  put  to  the 
hazard  of  arbitration,  leads  to  a  considera- 
tion of  some  other  course  of  action  to  avoid 
hostilities. 

87 


ARBITRATION 

The  method  suggested  is  either  by  the 
creation  of  a  special  international  tribu- 
nal, composed  of  an  uneven  number  of 
judges,  or,  as  in  some  cases  in  the  past, 
by  a  joint  commission,  composed  of  an 
equal  number  of  citizens  or  subjects  of  the 
interested  parties.  The  special  arbitration 
tribunal  involves  questions  so  similar  to 
those  already  discussed  as  to  the  Hague 
Court,  that  I  deem  it  unnecessary  to  give 
further  attention  to  it.  I  therefore  invite  a 
consideration  of  joint  commissions  of  the 
interested  nations. 

It  has  been  seen  that  there  is  a  class 
of  controversies  which,  in  the  present  state 
of  public  sentiment,  it  does  not  seem  pos- 
sible to  submit  to  arbitration.  We  have 
seen  that  the  Hague  convention  recognizes 
only  two  classes  of  cases  as  within  its  pur- 
^^  view  —  questions  of  a  judicial  character 
and  regarding  the  interpretation  of  trea- 
ties; and  that  the  Anglo-French  and  other 
recent  conventions,  in  seeking  to  make 
88 


SPECL\L   AND    JOINT    COMMISSIONS 

arbitration  compulsory  in  these  two  classes, 
have  still  further  limited  its  scope  by  ex- 
empting such  of  those  questions  as  affect 
the  vital  interests,  the  independence,  and 
the  honor  of  the  state.  Hence,  until  the 
intelligence  and  conscience  of  mankind  are 
awakened  to  demand  a  higher  standard 
of  international  justice,  there  are  a  large 
number  of  questions,  especially  of  a  politi- 
cal character,  which  remain  outside  of  the 
pale  of  arbitration. 

Is  it  not  possible  to  control  controversies 
belonging  to  these  classes  in  such  a  way  as 
to  bring  about  an  adjustment  in  aggravated 
cases  by  some  other  method  than  the  ar- 
bitrament of  war.?  The  Washington  Con- 
ference, while  it  recommended  uncondi- 
tional arbitration,  recognized  the  existence 
of  the  sentiment  alluded  to;  and  it  further 
recommended  that :  — 

*'  Governments  should  agree  not  to  resort 
in  any  case  to  hostile  measures  of  any  de- 
scription till  an  effort  had  been  made  to 

89 


ARBITRATION 

settle  any  matter  in  dispute  by  submitting 
the  same  either  to  the  Permanent  Court  at 
The  Hague,  or  to  a  commission  composed 
of  an  equal  number  of  persons  from  each 
country,  of  recognized  competence  in  ques- 
tions of  international  law." 

Ex-President  Harrison,  in  his  argument 
before  the  Venezuela  tribunal  at  Paris  in 
1899,  referred  to  the  work  of  the  Hague 
Conference,  then  in  session,  in  the  following 
forcible  language :  — 

*' Mr.  President:  It  has  been  to  me  a 
matter  of  special  interest  that  the  Presi- 
dent of  this  tribunal  [Professor  F.  de  Mar- 
tens], after  his  designation  by  these  two 
contending  nations  for  that  high  place 
which  assigned  to  him  the  duty  of  partici- 
pating in  practical  arbitration  between  na- 
tions, was  called  by  his  great  Sovereign  to 
take  part  in  a  conference  which  I  believe  will 
be  counted  to  be  one  of  the  greatest  assem- 
blies of  the  nations  that  the  world  has  yet 
seen,  not  only  in  the  personnel  of  those  who 
are  gathered  together,  but  in  the  wide  and 
widening  effect  which  its  resolutions  are 
to  have  upon  the  intercourse  between  na- 
90 


SPECIAL   AND    JOINT   COMMISSIONS 

tions  in  the  centuries  to  come.  There  was 
nothing,  Mr.  President,  in  your  proceedings 
at  The  Hague  that  so  much  attracted  my 
attention  and  interest  as  the  proposition  to 
constitute  a  permanent  court  of  arbitration.* 
It  seems  to  me  that  if  this  process  of  settUng 
international  differences  is  to  commend 
itself  to  the  nations,  it  can  only  hope  to  set 
up  for  the  trial  of  such  questions  an  abso- 
lutely impartial  judicial  tribunal.  If  con- 
ventions, if  accommodation,  and  if  the  rule 
of  "give  and  take"  are  to  be  used,  then  let 
the  diplomatists  settle  the  question ;  but 
when  they  have  failed  in  their  work,  and 
the  question  between  two  great  nations 
is  submitted  for  judgment,  it  seems  to  me 
necessarily  to  imply  the  introduction  of  a 
judicial  element  into  the  controversy." 

President  Harrison  was  addressing  his 
remarks  to  a  tribunal  which  he  was  seeking 
to  impress  with  the  judicial  character  of 
the  question  before  it,  but  which  failed  to 
take  that  view  of  it  in  their  decision,  and 
did  just  what  he  said  a  judicial  tribunal 
should  not  do  —  compromise  the  conflict- 
ing territorial  claims  of  the  litigants.  The 
91 


ARBITRATION 

case  he  had  in  hand  illustrates  the  fact  that 
arbitration  tribunals  often  have  to  reach  a 
mean  course  between  the  contending  claims 
submitted  to  them.  With  the  instincts  of 
a  highly  trained  judicial  mind,  with  the 
ardent  devotion  which  many  of  my  readers 
know  he  had  for  his  profession,  the  Ameri- 
can lawyer  in  Paris  pleaded  with  good 
reason  for  a  high  ideal  for  the  tribunal 
about  to  be  created  at  The  Hague.  It  may 
not  always  be  realized  there,  but  it  is  pos- 
sible in  such  commissions  as  seem  to  be 
contemplated  by  the  Washington  resolu- 
tion just  quoted. 

Allusion  has  been  made  to  the  fact  that 
questions  often  arise  between  nations  which 
they  are  not  willing  to  hazard  by  the  award 
of  foreign  judges,  and  about  which,  with 
the  most  friendly  intentions,  they  cannot 
agree.  The  controversy  may  involve  ques- 
tions of  law,  or  mixed  questions  of  law  and 
fact.  It  is  often  quite  possible  to  reach  a 
solution  by  reference  to  a  commission  of 
92 


SPECIAL   AND    JOINT   COMMISSIONS 

impartial  jurists  composed  of  an  equal 
number  from  both  countries.  The  Alaskan 
boundary  dispute  is  a  happy  illustration  of 
this. 

The  Alaskan  boundary  had  become  an 
irritating  controversy,  which  threatened  the 
peace  of  the  two  countries.  Great  Britain 
was  willing  to  submit  the  question  to  ar- 
bitration, but  in  view  of  the  fact  that  the 
United  States  had  had  uninterrupted  pos- 
session of  the  territory  in  dispute  for  many 
years,  the  public  sentiment  of  the  country 
would  not  permit  its  rulers  to  accept  the 
British  proposition.  After  much  discussion, 
it  was  agreed  that  the  questions  involved 
should  be  submitted  to  a  commission  of 
six  jurists,  composed  of  three  citizens  or 
subjects  from  each  country.  The  com- 
mission met  in  London  to  examine  the 
evidence  and  hear  argument  of  counsel.  It 
was  conceded  that  all  questions  turned 
upon  the  interpretation  of  a  treaty,  a  duty 
eminently  suited  to  the  determination  of 
93 


ARBITRATION 

jurists.  A  decision  on  all  the  questions  was 
made,  and  in  accordance  with  that  decision, 
the  two  governments  have  directed  their 
survey  officials  to  lay  off  and  mark  the 
boundary,  and  that  work  has  been  com- 
pleted. A  dispute  which  could  not  go  to 
arbitration  was  thus  adjusted  by  a  judicial 
commission.  Such  a  procedure  will  com- 
mend itself  especially  to  lawyers,  whose 
province  it  is  to  aid  in  the  settlement  of 
controversies  by  law  and  reason,  and  not 
by  force. 

Special  commissions  for  the  consider- 
ation of  matters  which  cannot  secure  a 
reference  to  arbitration  may  serve  other 
useful  purposes.  The  finding  of  a  body  of 
jurists  who  look  dispassionately  and  judi- 
cially at  the  question,  unembarrassed  by 
policy  or  politics,  may  so  elucidate  the  law 
and  the  facts  as  to  enable  the  disputing 
governments  to  reach  a  basis  of  settlement 
which  had  not  been  possible  through  di- 
plomacy. 

94 


SPECIAL  AND   JOINT  COMMISSIONS 

They  also  serve  the  important  purpose 
of  securing  delay  when  the  passions  of  both 
the  disputant  nations  are  wrought  up  to 
a  high  pitch  of  excitement  and  patriotism. 
Most  wars  may  be  avoided,  if  time  is 
afforded  to  treat  the  subject  of  dispute  with 
calmness  and  sober  reason.  It  should  be 
the  aim  of  the  advocates  of  arbitration  to 
secure  an  amendment  or  addition  to  the 
compulsory  treaties  recently  made  between 
various  of  the  European  powers,  similar  to 
the  provision  recommended  by  the  Wash- 
ington Conference,  pledging  the  contracting 
parties,  where  arbitration  is  unattainable, 
not  to  resort  in  any  case  to  hostilities  till 
an  effort  is  made  to  settle  the  matter  in 
dispute  by  a  commission  of  jurists  of  the 
nationalities  of  the  parties.  Such  a  stipu- 
lation will  go  far  to  preserve  the  peace  of 
the  world. 


VIII 
CONCLUSION 

SOME  of  the  friends  of  universal  peace, 
while  commending  the  spirit  of  the 
Hague  Conference,  assert  that  its  Perma- 
nent Court  is  hopelessly  inadequate,  that 
arbitration  treaties  between  nations,  such 
as  that  between  France  and  England,  will 
not  prevent  war,  and  that  the  effective 
remedy  is  a  world's  parliament  of  nations, 
clothed  with  a  mandate  to  preserve  peace, 
and  to  compel  disputing  nations  to  submit 
their  grievances  and  claims  to  arbitration 
or  the  judgment  of  the  parliament. 

Are  the  promises  held  out  by  the  Hague 
Court  illusory  ?  Is  it  destined  to  receive  the 
condemnation  of  the  nations,  or  to  die  of 
neglect  and  non-use  ?  I  hope  not.  I  think 
not.  The  delegates  to  that  great  assembly 
were  practical  men.  They  did  not  even  con- 
96 


CONCLUSION 

demn  war  as  wholly  unrighteous.  They  did 
not  attempt  the  impossible.  They  recog- 
nized their  work  as  imperfect,  but  it  was 
the  best  then  attainable.  I  have  pointed 
out  some  of  the  defects  of  the  arbitration 
convention,  and  have  suggested  amend- 
ments which  are  possible  of  attainment  at 
no  distant  day.  I  think  it  should  be  the 
policy  of  the  friends  of  universal  peace  to 
labor  to  perfect  that  instrument,  and  to 
make  the  Hague  Court  popular  with  the 
nations  as  an  effective  means  of  adjusting 
international  differences. 

A  permanent  world's  parliament  of  states 
is  a  long  way  off,  and  while  it  is  a  worthy 
ideal,  its  advocates  should  not  decry  the 
Hague  Court,  or  do  anything  to  lessen  the 
confidence  of  the  nations  in  its  utility.  The 
Conference,  as  has  already  been  noted, 
contemplated  a  similar  assembly  in  the 
near  future  to  amend  the  arbitration  con- 
vention, and  to  consider  the  exemption  of 
private  property  on  the  high  sea  in  time  of 
97 


4f 


ARBITRATION 

war,  a  measure  urged  upon  that  body  by 
the  delegates  from  the  United  States.  Other 
matters  of  international  moment  are  press- 
ing for  settlement. 

The  Interparliamentary  Union,  at  its 
session  in  St.  Louis  in  September,  1904, 
adopted  a  resolution  asking  the  President 
of  the  United  States  to  call  a  second  Peace 
Conference  of  the  nations  of  the  world.^ 
Similar  action  was  taken  by  the  Interna- 
tional Congress  of  Lawyers  and  Jurists, 
held  at  St.  Louis  the  same  month,  and  a 
week  later  by  the  International  Peace  Con- 
gress at  Boston.  President  Roosevelt  has 
responded  favorably  to  the  request  coming 
from  such  distinguished  bodies  of  repre- 
sentatives from  all  countries,  and  the  first 
step  towards  the  issuance  of  a  call  has  been 
taken  in  a  circular  letter  from  the  Depart- 
ment of  State,  asking  the  views  of  the 
several  governments  as  to  the  time  of  the 
convocation  of  such  a  conference,  and  an 

^  See  Appendix  E,  for  the  full  text  of  the  resolutions. 
98 


CONCLUSION 

indication  as  to  their  willingness  to  par- 
ticipate in  it.  The  present  war  between 
Russia  and  Japan  may  postpone  the  as- 
sembling of  the  Conference,  but  we  may 
confidently  look  for  its  meeting  at  no  dis- 
tant day.  In  anticipation  of  that  event,  it 
behooves  the  friends  of  arbitration  through- 
out the  world  to  influence  their  respective 
governments  to  make  still  more  effective 
the  Hague  Court. 

It  is  the  comment  of  those  who  have 
studied  the  deliberations  of  the  last  Con- 
ference and  the  action  of  the  nations  on  the 
subject  of  arbitration,  that  the  govern- 
ments have  been  in  advance  of  the  public 
sentiment  in  this  matter.  The  unthinking 
mass  of  mankind  are  fond  of  military,  dis- 
play, and  take  a  deep  interest  in  the  conflict 
of  armies.  The  patriotic  spirit  rejoices  in 
the  achievements  of  the  military  heroes 
and  the  triumphs  of  its  country  in  the  field 
of  arms.  Said  a  Senator  of  the  United 
States,  an  accomplished  statesman  and  an 
99 


ARBITRATION 

able  lawyer,  to  me  recently,  "There  is  no 
popular  demand  in  this  country  for  these 
arbitration  treaties;  the  sentiment  on  the 
subject  is  mainly  manufactured." 

We  might  point  the  Senator  to  the  fre- 
quent conferences  which  have  been  held 
in  Washington,  and  annually  at  Mohonk, 
embracing  representatives  of  all  classes 
of  society  in  the  United  States,  and  notably 
to  the  utterances  of  the  Interparliamentary 
Union,  the  Congress  of  Jurists  at  St.  Louis, 
and  the  Peace  Congress  at  Boston.  But 
his  statement  challenges  the  friends  of 
peace  in  this  country  to  manifest  still  fur- 
ther their  devotion  to  the  cause.  When 
the  arbitration  treaties  negotiated  by  Sec- 
retary Hay  are  transmitted  by  the  President 
to  the  Senate,  it  should  be  made  clear  to 
that  body  that  the  great  mass  of  the  people 
of  the  United  States  are  in  hearty  sympa- 
thy with  the  Executive  department  of  the 
Government  in  this  matter. 

The  members  of  the  Mohonk  Arbitra- 

100 


CONCLUSION 

tion  Conference,  who  for  years  have  been 
laboring  for  the  action  taken  by  the  Gov- 
ernment, should  be  active  in  making  their 
sentiments  known  to  their  representatives 
in  the  Senate.  Chambers  of  commerce  and 
business  organizations,  which  have  already 
so  generally  declared  in  favor  of  interna- 
tional arbitration,  should  again  raise  their 
potential  voices  in  its  favor.  The  labor  or- 
ganizations, whose  members  have  to  bear 
in  large  measure  the  sacrifice  of  life  which 
war  entails,  are  most  deeply  interested  in 
peace.  The  clergy  and  all  the  other  pro- 
fessions of  education  and  intelligence  owe 
it  to  their  country  to  throw  their  weighty 
influence  in  favor  of  this  beneficent  mea- 
sure. No  class  of  society  can  do  more  to 
bring  about  a  public  sentiment  in  support 
of  arbitration  than  the  lawyers  of  the  coun- 
try. Happily,  they  have  in  their  National 
and  State  associations  made  their  views 
known  in  unmistakable  terms.  I  again 
cite  the  action  of  the  New  York  State 
101 


ARBITRATION 
Bar  Association.  After  full  discussion  of 
the  subject  and  its  careful  study  by  a  com- 
mittee of  its  most  prominent  members,  a 
plan  for  a  permanent  international  arbi- 
tration court  was  drawn  up,  and  a  committee 
of  that  body  made  the  journey  to  Washing- 
ton to  lay  it  before  the  President  and  ask 
for  it  the  careful  attention  of  the  Govern- 
ment. That  plan  became  the  basis  of  the 
instructions  of  the  American  delegates  to 
the  Hague  Conference,  and  the  essential 
features  of  the  Permanent  Court  now  in 
existence  at  The  Hague  are  in  accordance 
with  that  plan.  The  same  Association  will 
doubtless  throw  its  influence  in  favor  of  the 
pending  arbitration  treaties. 

Notwithstanding  the  fierce  conflict  which 
is  raging  in  the  Far  East,  there  is  a  cheer- 
ful outlook  for  international  arbitration. 
Neither  should  the  august  initiator  of  the 
Hague  Conference  be  too  severely  censured 
for  inconsistency.  Unconditional  arbitra- 
tion was  not  contemplated  by  him,  and 
102 


CONCLUSION 

many  a  humane  ruler  before  his  day  has 
been  unwilHngly  involved  in  hostilities. 
Instances  of  the  avoidance  of  war  are  in- 
creasing in  our  time.  The  normal  condition 
of  the  world  now  is  peace,  and  for  that  the 
rulers  of  the  nations  constantly  strive.  The 
recent  treaty  between  Great  Britain  and 
France,  adjusting  all  outstanding  matters 
of  difference  between  these  two  ancient 
and  once  inveterate  enemies,  is  a  hopeful 
augury  for  the  future  conduct  of  states.  A 
notable  example  of  the  spirit  of  this  latter 
day  is  the  action  of  the  two  most  southern 
republics  of  this  hemisphere,  in  uniting  in 
a  treaty  of  peace  and  unconditional  arbi- 
tration, whereby  their  armies  are  disbanded 
and  their  navies  reduced  by  the  sale  of  a 
number  of  their  battleships  and  the  trans- 
formation of  cruisers  into  vessels  of  com- 
merce. To  crown  this  noble  work,  Argen- 
tina and  Chile  have  done  well  to  erect  on  the 
highest  peak  of  the  Andes  which  marks 
their  international  boundary,  long  a  sub- 
103 


ARBITRATION 

ject  of  angry  controversy,  a  statue  of  the 
Christ,  the  Prince  of  Peace. 

A  fresh  propaganda  for  arbitration  has 
opened  in  Europe,  in  which  the  statesmen 
and  jurists  of  France  take  the  lead.  King 
Edward  VII  is  exerting  his  mighty  influ- 
ence among  the  Great  Powers  in  the  same 
direction.  The  President  of  the  United 
States,  on  all  proper  occasions,  raises  his 
voice  and  shapes  the  conduct  of  his  Gov- 
ernment in  favor  of  international  arbitra- 
tion. We  know  too  sadly,  by  the  daily 
intelligence  from  the  East,  that  universal 
peace  has  not  yet  come,  but  we  may  fondly 
hope  that  the  era  of  Alexander,  Caesar, 
and  Napoleon  has  passed  never  to  return; 
that  the  ambition  of  rulers  and  the  rivalry 
of  nations  may  henceforth  lie  in  the  paths 
of  education,  industry,  and  commerce;  and 
that  the  Hague  Court  will  long  stand  as 
a  beacon  light  in  the  tempestuous  sea  of 
international  politics,  and  its  influence  and 
eflBciency  grow  with  the  advancing  years. 
104 


APPENDIX 


THE   HAGUE   ARBITRATION   CON- 
VENTION 

CONVENTION   FOR   THE    PEACEFUL   SETTLEMENT    OF 
INTERNATIONAL    DIFFERENCES,    1899 

TTIS  Majesty  the  German  Emperor,  King  of 
Prussia;  His  Majesty  the  Emperor  of  Austria, 
King  of  Bohemia,  etc.,  and  ApostoHc  King  of  Hun- 
gary; His  Majesty  the  King  of  the  Belgians;  His 
Majesty  the  Emperor  of  China;  His  Majesty  the 
King  of  Denmark;  His  Majesty  the  King  of  Spain, 
and  in  his  name  Her  Majesty  the  Queen-Regent  of 
the  Kingdom;  the  President  of  the  United  States 
of  America;  the  President  of  the  United  States  of 
Mexico ;  the  President  of  the  French  RepubUc ;  Her 
Majesty  the  Queen  of  the  United  Kingdom  of  Great 
Britain  and  Ireland,  Empress  of  India;  His  Majesty 
the  King  of  the  Hellenes;  His  Majesty  the  King 
of  Italy;  His  Majesty  the  Emperor  of  Japan;  His 
Royal  Highness  the  Grand  Duke  of  Luxemburg, 
Duke  of  Nassau ;  His  Highness  the  Prince  of  Mon- 
107 


APPENDIX 

tenegro;  Her  Majesty  the  Queen  of  the  Nether- 
lands; His  Imperial  Majesty  the  Shah  of  Persia; 
His  Majesty  the  King  of  Portugal  and  the  Al- 
garves;  His  Majesty  the  King  of  Roumania;  His 
Majesty  the  Emperor  of  All  the  Russias ;  His  Ma- 
jesty the  King  of  Servia;  His  Majesty  the  King 
of  Siam;  His  Majesty  the  King  of  Sweden  and 
Norway;  The  Swiss  Federal  Council;  His  Ma- 
jesty the  Emperor  of  the  Ottomans;  and  his  Royal 
Highness  the  Prince  of  Bulgaria: 

Animated  by  a  strong  desire  to  concert  for  the 
maintenance  of  the  general  peace ; 

Resolved  to  second  by  their  best  efforts  the 
friendly  settlement  of  international  disputes; 

Recognizing  the  solidarity  which  unites  the  mem- 
bers of  the  society  of  civilized  nations; 

Desirous  of  extending  the  empire  of  law,  and  of 
strengthening  the  appreciation  of  international  jus- 
tice ; 

Convinced  that  the  permanent  institution  of  a 
Court  of  Arbitration,  accessible  to  all,  in  the  midst 
of  the  independent  Powers,  will  contribute  effec- 
tively to  this  result; 

Having  regard  to  the  advantages  attending  the  gen- 
eral and  regular  organization  of  arbitral  procedure; 
108 


APPENDIX 

Sharing  the  opinion  of  the  august  Initiator  of  the 
International  Peace  Conference  that  it  is  expedient 
to  solemnly  establish,  by  an  international  Agree- 
ment, the  principles  of  equity  and  right  on  which 
repose  the  security  of  States  and  the  welfare  of 
peoples ; 

Being  desirous  of  concluding  a  convention  to  this 
effect,  have  appointed  as  their  Plenipotentiaries,  to 
wit:  — 

(Names.) 

Who,  after  communication  of  their  full  powers, 
found  in  good  and  due  form,  have  agreed  on  the 
following  provisions :  — 

Title  I.  —  On  the  Maintenance  of  General  Peace. 
Article  I.  With  a  view  to  obviating,  as  far  as 
possible,  recourse  to  force  in  the  relations  between 
States,  the  Signatory  Powers  agree  to  use  their  best 
efforts  to  insure  the  pacific  settlement  of  interna- 
tional differences. 

Title  II.  —  On  Good  Offices  and  Mediation. 

Article  II.  In  case  of  serious  disagreement  or 
conflict,  before  an  appeal  to  arms,  the  Signatory 
Powers  agree  to  have  recourse,  as  far  as  circum- 
109 


APPENDIX 

stances  allow,  to  the  good  offices  or  mediation  of 
one  or  more  friendly  Powers. 

Article  III.  Independently  of  this  recourse,  the 
Signatory  Powers  consider  it  useful  that  one  or  more 
Powers,  strangers  to  the  dispute,  should  on  their 
own  initiative,  and  as  far  as  circumstances  will  allow, 
offer  their  good  offices  or  mediation  to  the  States  at 
variance. 

The  right  to  offer  good  offices  or  mediation  be- 
longs to  Powers  who  are  strangers  to  the  dispute, 
even  during  the  course  of  hostilities. 

The  exercise  of  this  right  shall  never  be  regarded 
by  one  or  the  other  of  the  parties  to  the  contest  as 
an  unfriendly  act. 

Article  IV.  The  part  of  the  mediator  consists  in 
reconciling  the  opposing  claims  and  in  appeasing 
the  feelings  of  resentment  which  may  have  arisen 
between  the  States  at  variance. 

Article  V.  The  functions  of  the  mediator  are  at 
an  end  when  once  it  is  declared,  either  by  one  of  the 
parties  to  the  dispute  or  by  the  mediating  Power 
itself,  that  the  methods  of  conciliation  proposed  by 
it  are  not  accepted. 

Article  VI.  Good  offices  and  mediation,  whether 
at  the  request  of  the  parties  at  variance  or  upon  the 

110 


APPENDIX 

initiative  of  Powers  who  are  strangers  to  the  dispute, 
have  exclusively  the  character  of  advice,  and  never 
have  binding  force. 

Article  VII.  The  acceptance  of  mediation  can- 
not, unless  there  be  an  agreement  to  the  contrary, 
have  the  effect  of  interrupting,  delaying,  or  hinder- 
ing mobiUzation  or  other  measures  of  preparation 
for  war. 

If  mediation  occurs  after  the  commencement  of 
hostilities,  it  causes  no  interruption  to  the  military 
operations  in  progress,  unless  there  be  an  agreement 
to  the  contrary. 

Article  VIII.  The  Signatory  Powers  are  agreed 
in  recommending  the  apphcation,  when  circum- 
stances allow,  of  special  mediation  in  the  following 
form:  — 

In  the  case  of  a  serious  difference  endangering  the 
peace,  the  States  at  variance  shall  each  choose  a 
Power,  to  whom  they  intrust  the  mission  of  entering 
into  direct  communication  with  the  Power  chosen 
on  the  other  side,  with  the  object  of  preventing  the 
rupture  of  pacific  relations. 

During  the  period  of  this  mandate,  the  term  of 
which,  unless  otherwise  stipulated,  cannot  exceed 
tliirty  days,  the  States  in  conflict  shall  cease  from  all 
111 


APPENDIX 

direct  communication  on  the  subject  of  the  dispute, 
which  is  regarded  as  having  been  referred  exclusively 
to  the  mediating  Powers,  who  shall  use  their  best 
efforts  to  settle  the  controversy. 

In  case  of  a  definite  rupture  of  pacific  relations, 
these  Powers  remain  charged  with  the  joint  duty  of 
taking  advantage  of  every  opportunity  to  restore 
peace. 

Title  III.  —  On  International  Commissions  of 
Inquiry. 

Article  IX.  In  differences  of  an  international 
nature  involving  neither  honor  nor  vital  interests, 
and  arising  from  a  difference  of  opinion  on  matter  of 
fact,  the  Signatory  Powers  recommend  that  parties 
who  have  not  been  able  to  come  to  an  agreement  by 
diplomatic  methods  should,  as  far  as  circumstances 
allow,  institute  an  International  Commission  of 
Inquiry,  to  facilitate  a  solution  of  the  differences  by 
elucidating  the  facts  by  means  of  an  impartial  and 
conscientious  investigation. 

Article  X.  International  Commissions  of  In- 
quiry shall  be  constituted  by  a  special  agreement 
between  the  parties  to  the  controversy.  The  agree- 
ment for  the  inquiry  shall  specify  the  facts  to  be 
112 


APPENDIX 

examined  and  the  extent  of  the  powers  of  the  com- 
missioners. It  shall  fix  the  procedure.  Upon  the 
inquiry  both  sides  shall  be  heard.  The  procedure  to 
be  observed,  if  not  provided  for  in  the  Convention 
of  Inquiry,  shall  be  fixed  by  the  Commission. 

Article  XI.  The  International  Commissions  of 
Inquiry  shall  be  formed,  unless  otherwise  stipu- 
lated, in  the  manner  fixed  by  Article  XXXII  of  the 
present  Convention. 

Article  XII.  The  Powers  in  dispute  agree  to 
supply  the  International  Commission  of  Inquiry,  as 
fully  as  they  may  consider  it  possible,  with  all  means 
and  facilities  necessary  to  enable  it  to  arrive  at  a 
complete  acquaintance  and  correct  understanding 
of  the  facts  in  question. 

Article  XIII.  The  International  Commission  of 
Inquiry  shall  present  to  the  parties  in  dispute  its 
report  signed  by  all  the  members  of  the  Commis- 
sion. 

Article  XIV.  The  report  of  the  International 
Commission  of  Inquiry  shall  be  limited  to  a  state- 
ment of  the  facts,  and  shall  in  no  way  have  the  char- 
acter of  an  arbitral  award.  It  leaves  the  Powers  in 
'controversy  freedom  as  to  the  effect  to  be  given  to 
such  statement. 

113 


APPENDIX 

Title  IV.  —  On  International  Arbitration. 

Chapter  I.  —  On  Arbitral  Justice. 

Article  XV.  International  arbitration  has  for  its 
object  the  determination  of  controversies  between 
States  by  judges  qf  their  own  choice,  upon  the  basis 
of  respect  for  law. 

Article  XVI.  In  questions  of  a  judicial  charac- 
ter, and  especially  in  questions  regarding  the  inter- 
pretation or  appUcation  of  international  treaties  or 
conventions,  arbitration  is  recognized  by  the  Signa- 
tory Powers  as  the  most  efficacious  and  at  the  same 
time  the  most  equitable  method  of  deciding  contro- 
versies which  have  not  been  settled  by  diplomatic 
methods. 

Article  XVII.  An  agreement  of  arbitration  may 
be  made  with  reference  to  disputes  already  existing 
or  those  which  may  hereafter  arise.  It  may  relate  to 
every  kind  of  controversy  or  solely  to  controversies 
of  a  particular  character. 

Article  XVIII.  The  agreement  of  arbitration 
implies  the  obligation  to  submit  in  good  faith  to  the 
decision  of  the  arbitral  tribunal. 

Article  XIX.  Independently  of  existing  general 
or  special  treaties  imposing  the  obhgation  to  have 
114 


APPENDIX 

recourse  to  arbitration  on  the  part  of  any  of  the 
Signatory  Powers,  these  Powers  reserve  to  them- 
selves the  right  to  conclude,  either  before  the  ratifi- 
cation of  the  present  Convention,  or  subsequent  to 
that  date,  new  agreements,  general  or  special,  with 
a  view  of  extending  the  obligation  to  submit  contro- 
versies to  arbitration,  to  all  cases  which  they  con- 
sider suitable  for  such  submission. 

Chapter  II.  —  On  the  Permanent  Court  of  Arbi- 
tration. 

Article  XX.  With  the  object  of  facilitating  an 
immediate  recourse  to  arbitration  fo*r  international 
differences  which  could  not  be  settled  by  diplomatic 
methods,  the  Signatory  Powers  undertake  to  organ- 
ize a  permanent  Court  of  Arbitration  accessible  at 
all  times,  and  acting,  unless  otherwise  stipulated  by 
the  parties,  in  accordance  with  the  rules  of  procedure 
included  in  the  present  Convention. 

Article  XXI.  The  permanent  Court  shall  have 
jurisdiction  of  all  cases  of  arbitration,  unless  there 
shall  be  an  agreement  between  the  parties  for  the 
establishment  of  a  special  tribunal. 

Article  XXII.  An  International  Bureau  shall 
be  estabhshed  at  The  Hague,  and  shall  serve  as  the 
115 


APPENDIX 

record  oflBce  for  the  Court.  This  Bureau  shall  be  the 
medium  of  all  communications  relating  to  the  Court. 
It  shall  have  the  custody  of  the  archives,  and  shall 
conduct  all  the  administrative  business.  The  Sig- 
natory Powers  agree  to  furnish  the  Bureau  at  The 
Hague  vdth  a  certified  copy  of  every  agreement  of 
arbitration  arrived  at  between  them,  and  of  any 
award  therein  rendered  by  a  special  tribunal.  They 
also  undertake  to  furnish  the  Bureau  with  the  laws, 
rules,  and  documents,  eventually  declaring  the  exe- 
cution of  the  judgments  rendered  by  the  Court. 

Article  XXIII.  Within  three  months  following 
the  ratification  of  the  present  act,  each  Signatory 
Power  shall  select  not  more  than  four  persons,  of 
recognized  competence  in  questions  of  international 
law,  enjoying  the  highest  moral  reputation,  and  dis- 
posed to  accept  the  duties  of  arbitrators.  The  per- 
sons thus  selected  shall  be  enrolled  as  members  of 
the  Court,  upon  a  list  which  shall  be  communicated 
by  the  Bureau  to  all  the  Signatory  Powers.  Any 
alteration  in  the  list  of  arbitrators  shall  be  brought 
to  the  knowledge  of  the  Signatory  Powers  by  the 
Bureau.  Two  or  more  Powers  may  unite  in  the 
selection  of  one  or  more  members  of  the  Court.  The 
same  person  may  be  selected  by  different  powers. 
116 


APPENDIX 

The  members  of  the  Court  shall  be  appointed  for 
a  term  of  six  years,  and  their  appointment  may  be 
renewed.  In  case  of  the  death  or  resignation  of  a 
member  of  the  Court,  his  place  shall  be  filled  in 
accordance  wdth  the  method  of  his  appointment. 

Article  XXW.  TVTienever  the  Signatory  Powers 
wish  to  have  recourse  to  the  permanent  Court  for  the 
settlement  of  a  difference  that  has  arisen  between 
them,  the  arbitrators  selected  to  constitute  the  Tri- 
bunal which  shall  have  jurisdiction  to  determine  such 
difference  shall  be  chosen  from  the  general  list  of 
members  of  the  Court.  If  such  arbitral  Tribunal  be 
not  constituted  by  the  special  agreement  of  the 
parties,  it  shall  be  formed  in  the  following  manner: 
Each  party  shall  name  two  arbitrators,  and  these 
together  shall  choose  an  umpire.  If  the  votes  shall 
be  equal,  the  choice  of  the  umpire  shall  be  intrusted 
to  a  third  Power  selected  by  the  parties  by  common 
accord.  If  an  agreement  is  not  arrived  at  on  this  sub- 
ject, each  party  shall  select  a  different  Power,  and 
the  choice  of  the  umpire  shall  be  made  by  the  united 
action  of  the  Powers  thus  selected.  The  Tribunal 
being  thus  constituted,  the  parties  shall  communi- 
cate to  the  Bureau  their  decision  to  have  recourse  to 
the  Court,  and  the  names  of  the  arbitrators.  The 
117 


APPENDIX 

Tribunal  of  Arbitration  shall  meet  at  the  time  fixed 
by  the  parties.  The  members  of  the  Court,  in  the 
discharge  of  their  duties,  and  outside  of  their  own 
country,  shall  enjoy  diplomatic  privileges  and 
immunities. 

Article  XXV.  The  Court  of  Arbitration  shall 
ordinarily  sit  at  The  Hague.  Except  in  cases  of  neces- 
sity, the  place  of  session  shall  be  changed  by  the 
Court  only  with  the  assent  of  the  parties. 

Article  XXVI.  The  International  Bureau  at 
The  Hague  is  authorized  to  put  its  offices  and  its 
staff  at  the  disposal  of  the  Signatory  Powers,  for  the 
performance  of  the  duties  of  any  special  tribunal 
of  arbitration.  The  jurisdiction  of  the  permanent 
Court  may  be  extended,  under  conditions  prescribed 
by  its  rules,  to  controversies  existing  between  Non- 
signatory  Powers,  or  between  Signatory  Powers  and 
Non-signatory  Powers,  if  the  parties  agree  to  submit 
to  its  jurisdiction. 

Article  XXVII.  The  Signatory  Powers  consider 
it  their  duty,  in  case  a  serious  dispute  threatens  to 
break  out  between  two  or  more  of  them,  to  remind 
these  latter  that  the  permanent  Court  of  Arbitration 
is  open  to  them.  Consequently,  they  declare  that  the 
fact  of  reminding  the  parties  in  controversy  of  the 
118 


APPENDIX 

provisions  of  the  present  Convention,  and  the  advice 
given  to  them,  in  the  higher  interests  of  peace,  to 
have  recourse  to  the  permanent  Court,  can  only  be 
considered  as  an  exercise  of  good  offices. 

Article  XXVIII.  A  permanent  administrative 
Council  composed  of  the  diplomatic  representatives 
of  the  Signatory  Powers  accredited  to  The  Hague, 
and  of  the  Netherlands  Minister  of  Foreign  Affairs, 
who  shall  act  as  President,  shall  be  constituted  in 
that  city  as  soon  as  possible  after  the  ratification  of 
the  present  Act  by  at  least  nine  Powers.  This  Coun- 
cil shall  be  charged  with  the  establishment  and 
organization  of  the  International  Bureau,  wliich 
shall  remain  under  its  direction  and  control.  It  shall 
notify  the  Powers  of  the  constitution  of  the  Court 
and  pro\dde  for  its  installation.  It  shall  make  its 
own  by-laws,  and  all  other  necessary  regulations.  It 
shall  decide  all  questions  of  administration  which 
may  arise  with  regard  to  the  operations  of  the  Court. 
It  shall  have  entire  control  over  the  appointment, 
suspension,  or  dismissal  of  officials  and  employees  of 
the  Bureau.  It  shall  determine  their  allowances  and 
salaries,  and  control  the  general  expenditure.  At 
meetings  duly  summoned  five  members  shall  con- 
stitute a  quorum.  All  decisions  shall  be  made  by  a 
119 


APPENDIX 

majority  of  votes.  The  Council  shall  communicate 
to  each  Signatory  Power  without  delay  the  by-laws 
and  regulations  adopted  by  it.  It  shall  furnish  them 
with  a  signed  report  of  the  proceedings  of  the  Court, 
the  working  of  the  administration,  and  the  expenses. 
Article  XXIX.  The  expense  of  the  Bureau  shall 
be  borne  by  the  Signatory  Powers  in  the  proportion 
established  for  the  International  Bureau  of  the 
International  Postal  Union. 

Chapter  III.  —  On  Arbitral  Procedure. 

Article  XXX.  With  a  view  to  encouraging  the 
development  of  arbitration,  the  Signatory  Powers 
have  agreed  on  the  following  rules,  which  shall  be 
applicable  to  the  arbitral  procedure,  unless  the  par- 
ties have  agreed  upon  different  regulations. 

Article  XXXI.  The  Powers  which  resort  to 
arbitration  shall  sign  a  special  act  (compromis),  in 
which  the  subject  of  the  difference  shall  be  precisely 
defined,  as  well  as  the  extent  of  the  powers  of  the 
arbitrators.  This  act  implies  an  agreement  by  each 
party  to  submit  in  good  faith  to  the  award. 

Article  XXXII.  The  duties  of  arbitrator  may  be 
conferred  upon  one  arbitrator  alone,  or  upon  several 
arbitrators  selected  by  the  parties,  as  they  please,  or 
120 


APPENDIX 

chosen  by  them  from  the  members  of  the  permanent 
Court  of  Arbitration  estabHshed  by  the  present  act. 
Failing  the  constitution  of  the  Tribunal  by  direct 
agreement  between  the  parties,  it  shall  be  formed  in 
the  following  manner :  — 

Each  party  shall  appoint  two  arbitrators,  and 
these  shall  together  choose  an  umpire.  In  case  of  an 
equal  division  of  votes  the  choice  of  the  umpire  shall 
be  intrusted  to  a  third  Power  to  be  selected  by  the 
parties  by  common  accord.  If  no  agreement  is 
arrived  at  on  this  point,  each  party  shall  select  a  dif- 
ferent Power,  and  the  choice  of  the  umpire  shall 
be  made  by  agreement  between  the  Powers  thus 
selected. 

Article  XXXIII.  When  a  Sovereign  or  Chief  of 
State  shall  be  chosen  for  an  arbitrator,  the  arbitral 
procedure  shall  be  determined  by  him. 

Article  XXXIV.  The  umpire  shall  preside  over 
the  Tribunal.  WTien  the  Tribunal  does  not  in- 
clude an  umpire,  it  shall  appoint  its  own  presiding 
officer. 

Article  XXXV.    In  case  of  the  death,  resigna- 
tion, or  absence  for  any  cause,  of  one  of  the  arbi- 
trators, the  place  shall  be  filled  in  the  manner  pro- 
vided for  his  appointment. 
121 


APPENDIX 

Article  XXXVI.  The  parties  shall  designate  the 
place  where  the  Tribunal  is  to  sit.  Failing  such  a 
designation,  the  Tribunal  shall  sit  at  The  Hague. 
The  place  of  session  thus  determined  shall  not, 
except  in  the  case  of  overwhelming  necessity,  be 
changed  by  the  Tribunal  without  the  consent  of 
the  parties. 

Article  XXXVII.  The  parties  shall  have  the 
right  to  appoint  agents  or  attorneys  to  represent 
them  before  the  Tribunal,  and  to  serve  as  inter- 
mediaries between  them  and  it. 

They  are  also  authorized  to  employ  for  the  de- 
fence of  their  rights  and  interests  before  the  Tribunal 
counsellors  or  solicitors  named  by  them  for  that 
purpose. 

Article  XXXVIII.  The  Tribunal  shall  decide 
upon  the  choice  of  languages  used  by  itself  or  to 
be  authorized  for  use  before  it. 

Article  XXXIX.  As  a  general  rule,  the  arbitral 
procedure  shall  comprise  two  distinct  phases,  — 
preliminary  examination  and  discussion.  Prelimi- 
nary examination  shall  consist  in  the  communication 
by  the  respective  agents  to  the  members  of  the  Tri- 
bunal and  to  the  opposite  party,  of  all  printed  or 
written  acts,  and  of  all  documents  containing  the 
122 


APPENDIX 

arguments  to  be  invoked  in  the  case.  This  com- 
munication shall  be  made  in  the  form  and  wdthin 
the  period  fixed  by  the  Tribunal,  in  accordance  with 
Article  XLIX. 

The  discussion  shall  consist  in  the  oral  develop- 
ment before  the  Tribunal  of  the  argument  of  the 
parties. 

Article  XL.  Every  document  produced  by  one 
party  must  be  communicated  to  the  other  party. 

Article  XLI.  The  discussions  shall  be  under  the 
direction  of  the  President.  They  shall  be  pubhc  only 
in  case  it  shall  be  so  decided  by  the  Tribunal,  with 
the  assent  of  the  parties.  They  shall  be  recorded 
in  the  official  minutes  drawn  up  by  the  Secretaries 
appointed  by  the  President.  These  official  minutes 
alone  shall  have  an  authentic  character. 

Article  XLII.  When  the  preliminary  examina- 
tion is  concluded,  the  Tribunal  may  refuse  admis- 
sion of  all  new  acts  or  documents,  which  one  party 
may  desire  to  submit  to  it,  without  the  consent  of  the 
other  party. 

Article  XLIII.     The  Tribunal  may  take  into 

consideration  such  new  acts  or  documents  to  which 

its  attention  may  be  drawn  by  the  agents  or  counsel 

of  the  parties.    In  this  case  the  Tribunal  shall  have 

123 


APPENDIX 

the  right  to  require  the  production  of  these  acts  or 
documents,  but  it  is  obHged  to  make  them  known 
to  the  opposite  party. 

Article  XLIV.  The  Tribunal  may  also  require 
from  the  agents  of  the  party  the  production  of  all 
papers,  and  may  demand  all  necessary  explanations. 
In  the  case  of  refusal,  the  Tribunal  shall  take  note 
of  the  fact. 

Article  XLV.  The  agent  and  counsel  of  the  par- 
ties are  authorized  to  present  orally  to  the  Tribunal 
all  the  arguments  which  they  may  think  expedient 
in  support  of  their  cause. 

Article  XLVI.  They  shall  have  the  right  to  raise 
objections  and  to  make  incidental  motions.  The 
decisions  of  the  Tribunal  on  these  points  shall  be 
final,  and  shall  not  form  the  subject  of  any  subse- 
quent discussion. 

Article  XLVII.  The  members  of  the  Tribunal 
shall  have  the  right  to  put  questions  to  the  agents  or 
counsel  of  the  parties  and  to  demand  explanations 
from  them  on  doubtful  points.  Neither  the  questions 
put  nor  the  remarks  made  by  members  of  the  Tri- 
bunal during  the  discussion  or  argument  shall  be 
regarded  as  an  expression  of  opinion  by  the  Tribunal 
in  general,  or  by  its  members  in  particular. 
124 


APPENDIX 

Article  XLVIII.  The  Tribunal  is  authorized  to 
determine  its  own  jurisdiction,  by  interpreting  the 
agreement  of  arbitration  or  other  treaties  which  may 
be  quoted  in  point  and  by  the  appUcation  of  the 
principles  of  international  law. 

Article  XLIX.  The  Tribunal  shall  have  the 
right  to  make  rules  of  procedure  for  the  direction  of 
the  trial  to  determine  the  form  and  the  periods  in 
which  paiiies  must  conclude  the  argument,  and  to 
prescribe  all  the  formaUties  regulating  the  admis- 
sion of  evidence. 

Article  L.  The  agents  and  the  counsel  of  the 
parties  having  presented  all  the  arguments  and  evi- 
dence in  support:  of  their  case,  the  President  shall 
declare  the  hearing  closed. 

Article  LI.  The  dehberations  of  the  Tribunal 
shall  take  place  with  closed  doors.  Every  decision 
shall  be  made  by  a  majority  of  the  members  of  the 
Tribunal.  The  refusal  of  any  member  to  vote  shall 
be  noted  in  the  official  minutes. 

Article  LII.  The  award  shall  be  made  by  a 
majority  of  votes,  and  shall  be  accompanied  by  a 
statement  of  the  reasons  upon  which  it  is  based.  It 
must  be  drawn  up  in  writing  and  signed  by  each 
of  the  members  of  the  Tribunal.  Those  members 
125 


APPENDIX 

who  are  in  the  minority  may,  in  signing,  state  their 
dissent. 

Article  LIII.  The  award  shall  be  read  in  a  pub- 
lic sitting  of  the  Tribunal,  the  agents  and  counsel 
of  the  htigants  being  present  or  having  been  duly 
summoned. 

Article  LIV.  The  award  duly  pronounced  and 
notified  to  the  agents  of  the  parties  in  Utigation  shall 
decide  the  dispute  finally  and  without  appeal. 

Article  LV.  The  parties  may  reserve  in  the 
agreement  of  arbitration  the  right  to  demand  a 
rehearing  of  the  case.  In  this  case,  and  in  the  ab- 
sence of  any  stipulation  to  the  contrary,  the  demand 
shall  be  addressed  to  the  Tribunal  which  has  pro- 
nounced the  judgment ;  but  it  shall  be  based  only  on 
the  discovery  of  new  facts,  of  such  a  character  as  to 
exercise  a  decisive  influence  upon  the  judgment,  and 
which  at  the  time  of  the  judgment  were  unknown  to 
the  Tribunal  itself  and  to  the  parties  demanding  the 
rehearing.  The  proceedings  for  a  rehearing  can  only 
be  begun  by  a  decision  of  the  Tribunal  stating  ex- 
pressly the  existence  of  the  new  fact  and  recognizing 
that  it  possesses  the  character  described  in  the  pre- 
ceding paragraph,  and  declaring  that  the  demand  is 
admissible  on  that  ground.  The  agreement  of  arbi- 
126 


APPENDIX 

tration  shall  determine  the  time  within  which  the 
demand  for  a  rehearing  shall  be  made. 

Article  LVI.  The  award  shall  be  obUgatory  only 
upon  the  parties  who  have  concluded  the  arbitra- 
tion agreement.  When  there  is  a  question  of  the  in- 
terpretation of  an  agreement  entered  into  by  other 
Powers  besides  the  parties  in  Utigation,  the  par- 
ties to  the  dispute  shall  notify  the  other  Powers 
which  have  signed  the  agreement,  of  the  special 
agreement  which  they  have  concluded.  Each  one 
of  these  Powers  shall  have  the  right  to  take  part 
in  the  proceedings.  If  one  or  more  among  them 
avail  themselves  of  this  permission,  the  interpreta- 
tion in  the  judgment  becomes  obligatory  upon  them 
also. 

Article  LVII.  Each  party  shall  bear  its  own 
expenses  and  an  equal  part  of  the  expenses  of  the 
Tribunal. 

General  Provisions 
Article  LVIII.  The  present  Convention  shall  be 
ratified  with  as  little  delay  as  possible.  The  ratifica- 
tions shall  be  deposited  at  The  Hague.  An  official 
report  of  each  ratification  shall  be  made,  a  certified 
copy  of  which  shall  be  sent  through  diplomatic  chan- 
127 


APPENDIX 

nels  to  all  the  Powers  represented  in  the  Peace  Con- 
ference at  The  Hague. 

Article  LIX.  The  Powers  which  were  repre- 
sented at  the  International  Peace  Conference,  but 
which  have  not  signed  this  Convention,  may  become 
parties  to  it.  For  this  purpose  they  will  make  known 
to  the  Contracting  Powers  their  adherence  by  means 
of  a  written  notification  addressed  to  all  the  other 
Contracting  Powers. 

Article  LX.  The  conditions  under  which  Powers 
not  represented  in  the  International  Peace  Confer- 
ence may  become  adherents  to  the  present  Conven- 
tion shall  be  determined  hereafter  by  agreement 
between  the  Contracting  Powers. 

Article  LXI.  If  one  of  the  High  Contracting 
Parties  shall  give  notice  of  a  determination  to  with- 
draw from  the  present  Convention,  this  notification 
shall  have  its  effect  only  after  it  has  been  made  in 
writing  to  the  Government  of  the  Netherlands  and 
communicated  by  it  immediately  to  all  the  other 
Contracting  Powers.  This  notification  shall  have  no 
effect  except  for  the  Power  which  has  made  it. 

In  faith  of  which  the  Plenipotentiaries  have 
signed  the  present  Convention  and  affixed  their  seals 
to  it. 

128 


APPENDIX 

Done  at  The  Hague,  the  29th  July,  1899,  in  a 
single  copy,  which  shall  remain  in  the  archives  of  the 
Netherlands  Government,  and  copies  of  it,  duly 
certified,  be  sent  through  the  diplomatic  channel  to 
the  Contracting  Powers. 

(Signatures.) 


T 


B 

ANGLO-FRENCH   TREATY   OF    1903 

Translation 
HE  Government  of  the  French  Repubhc,  and 


the  Government  of  H.  B.  Majesty,  signatories 
of  the  Convention  for  the  pacific  settlement  of  In- 
ternational disputes,  concluded  at  The  Hague,  July 
29,  1899, 

Considering  that  by  Article  19  of  this  Convention, 
the  High  Contracting  Parties  reserved  to  themselves 
the  conclusion  of  agreements  in  view  of  recourse  to 
arbitration  in  all  cases  which  they  judged  capable  of 
submission  to  it, 

Have  authorized  the  undersigned  to  agree  as  fol- 
lows :  — 

Article  I.  Differences  of  a  judicial  order,  or 
relative  to  the  interpretation  of  existing  treaties 
between  the  two  Contracting  Parties,  which  may 
rise,  and  which  it  may  not  have  been  possible  to 
settle  by  diplomacy,  shall  be  submitted  to  the  Per- 
manent Court  of  Arbitration  established  by  the 
130 


APPENDIX 

Convention  of  July  29,  1899,  at  The  Hague,  on 
condition,  however,  that  neither  the  vital  interests, 
nor  the  independence  or  honour  of  the  two  Con- 
tracting States,  nor  the  interests  of  any  State  other 
than  the  two  Contracting  States,  are  involved. 

Article  II.  In  each  particular  case  the  High 
Contracting  Parties,  before  addressing  themselves 
to  the  Permanent  Court  of  Arbitration,  shall  sign  a 
special  undertaking  determining  clearly  the  subject 
of  dispute,  the  extent  of  the  Arbitral  powers,  and 
the  details  to  be  observed  in  the  constitution  of  the 
Arbitral  Tribunal  and  the  procedure. 

Article  III.  The  present  arrangement  is  con- 
cluded for  a  duration  of  five  years  from  the  date  of 

signature. 

Cambon, 

Lansdowne. 
London,  October  14, 1903. 


THE    NETHERLANDS-DENMARK 
TREATY    OF    1904 

Translation 
TTER  Majesty  the  Queen  of  the  Netherlands  and 
His  Majesty  the  King  of  Denmark,  moved 
by  the  principles  of  the  Convention  for'  the  peace- 
able settlement  of  International  Disputes,  concluded 
at  The  Hague  on  the  29th  of  July,  1899,  and  de- 
siring to  establish  especially  in  all  reciprocal  rela- 
tions the  principle  of  obligatory  arbitration  by  a  gen- 
eral agreement  in  accord  with  Article  19  of  the  said 
treaty,  have  resolved  to  enter  into  a  treaty  to  that 
end,  and  have  appointed  their  plenipotentiaries, 
to  wit :  — 

Her  Majesty  the  Queen  of  the  Netherlands: 
Mr.  Jacob  Dirk  Carel  Baron  van  Heeckeren  van 
Kell,  Her  Majesty's  Envoy  Extraordinary  and  Min- 
ister Plenipotentiary  near  to  His  Majesty  the  King 
of  Denmark,  Knight  of  the  Order  of  the  Nether- 
lands Lion: 

132 


APPENDIX 

His  Majesty  the  King  of  Denmark: 

Mr.  John  Henrik  Deuntzer,  Chairman  of  the 
Cabinet  Council  and  Minister  of  Foreign  Affairs, 
Grand  Cross  of  the  Danebrog  Order  and  bearer  of 
the  honorary  cross  of  the  same  order,  etc.,  etc.,  who, 
having  exchanged  their  powers  plenipotentiary, 
which  were  found  to  be  in  proper  order,  have  agreed 
to  the  following  provisions :  — 

Article  I.  The  High  Contracting  Powers  un- 
dertake to  submit  to  the  Permanent  Court  of  Arbi- 
tration all  mutual  differences  and  disputes  that 
cannot  be  solved  by  means  of  a  diplomatic  chan- 
nel. 

Article  II.  In  every  case  the  High  Contracting 
Powers,  prior  to  submitting  the  case  to  the  Per- 
manent Court  of  Arbitration,  shall  sign  a  special 
agreement,  clearly  describing  the  subject  of  the  liti- 
gation, the  extent  of  the  powers  of  the  arbitrators, 
and  the  time  which  shall  be  observed  in  regard  to 
the  composition  of  the  Arbitral  Tribunal  and  the 
procedure. 

Article  III.  That  it  be  understood  that  Arti- 
cle I  does  not  apply  to  disputes  between  subjects  of 
any  of  the  contracting  States  and  those  of  the  other 
contracting  State,  to  the  adjudicating  of  which  the 
133 


APPENDIX 

courts  of  justice  of  the  last  mentioned  State  are 
empowered  according  to  its  own  laws. 

Article  IV.  States,  non-signatory  to  this  treaty, 
shall  be  allowed  to  adhere  to  the  same.  The  State 
desirous  of  adhering  shall  notify  each  of  the  con- 
tracting States  in  writing  of  its  intention. 

Adhesion  shall  follow  from  the  day  on  which  the 
adhering  State  shall  advise  that  each  of  these  States 
has  notified  it  of  the  receipt  of  its  intimation. 

Article  V.  In  case  one  of  the  contracting  States 
should  withdraw  from  tliis  treaty,  such  withdrawal 
shall  only  take  place  one  year  after  the  notice 
thereof  is  given  in  writing  to  each  of  the  other  con- 
tracting States. 

Article  VI.  This  treaty  shall  be  ratified  as 
soon  as  possible,  and  the  exchange  of  the  acts  of 
ratification  take  place  at  The  Hague. 

In  witness  whereof  the  respective  plenipotentiaries 
have  hereto  set  their  hands  and  affixed  their  seals. 
Copenhagen,  the  12th  of  February,  1904. 

(Signed)  Carel  van  Heeckeren. 
(Signed)  Deuntzer. 


D 

EXTRACT  FROM  TREATY  BETWEEN 
MEXICO  AND  SPAIN  OF  1902 

Translation 

A  RTICLE  I.  The  high  contracting  parties  agree 
to  submit  to  the  decision  of  arbitrators  all  con- 
troversies which  may  arise  between  them  during  the 
existence  of  the  present  treaty  in  which  they  might 
not  have  been  able  to  reach  an  amicable  solution 
by  direct  negotiation;  provided  that  said  contro- 
versies affect  neither  the  national  independence  nor 
honor. 

Article  II.  Neither  the  national  independence 
nor  honor  shall  be  considered  to  be  compromised  in 
the  following  cases :  — 

A.  When  treating  of  pecuniary  damages  and  pre- 
judices suffered  by  one  of  the  contracting  states  or  by 
its  citizens  because  of  illegal  acts  or  omissions  on  the 
part  of  the  other  contracting  state  or  its  citizens. 

B.  When  treating  of  the  interpretation  of  the 
treaties,  agreements,  and  conventions  relating  to  the 

135 


APPENDIX 

protection  of  ownership  of  artistic,  literary,  and 
industrial  property,  as  well  as  to  that  of  privileges, 
patents  of  inventions,  trade-marks,  mercantile 
firms,  money,  weights  and  measures,  and  sanitary 
precautions,  either  veterinary  or  to  exclude  phyl- 
loxera. 

C.  When  treating  of  the  application  of  treaties, 
agreements,  and  conventions  relating  to  successions, 
aid,  and  judicial  correspondence. 

D.  When  treating  of  treaties,  agreements,  and 
conventions  now  in  force,  or  which  may  be  cele- 
brated hereafter,  with  the  object  of  putting  the  prin- 
ciples of  public  or  private  international  law,  either 
civil  or  penal,  into  practice. 

E.  When  treating  of  questions  which  relate  to  the 
interpretation  or  execution  of  treaties,  agreements, 
and  conventions  of  friendship,  commerce,  and 
navigation. 


E 

RESOLUTION 

OF  THE 

INTERPARLIAMENTARY   UNION 

HELD  AT  ST.   LOUIS,  SEPTEMBER,  1904 

T TTHEREAS,  Enlightened  public  opinion  and 
the  spirit  of  modern  civihzation  aUke  de- 
mand that  differences  between  nations  should  be 
adjudicated  and  settled  in  the  same  manner  as 
disputes  between  individuals  are  adjudicated  — 
namely,  by  the  arbitrament  of  courts  in  accordance 
with  recognized  principles  of  law; 

The  Conference  requests  the  several  governments 
of  the  worid  to  send  representatives  to  an  interna- 
tional conference,  to  be  held  at  a  time  and  place  to 
be  agreed  upon  by  them  for  the  purpose  of  consid- 
ering : 

First,  the  questions  for  the  consideration  of  which 
the  Conference  at  The  Hague  expressed  a  wish  that 
a  future  conference  be  called; 

Second,  the  negotiation  of  arbitration  treaties 
137 


APPENDIX 

between  the  nations  represented  at  the  Conference 
to  be  convened; 

Third,  the  advisabiUty  of  establishing  an  Inter- 
national Congress  to  convene  periodically  for  the 
discussion  of  international  questions. 

And  this  Conference  respectfully  and  cordially 
requests  the  President  of  the  United  States  to  invite 
all  the  nations  to  send  representatives  to  such  a 
conference. 


F 

HON.    T.    E.    BURTON'S   SPEECH 

ON 

THE    NAVAL   APPROPRIATION   BILL^ 

rriHE  Chairman.  The  gentleman  from  Ohio  is 
recognized. 

Mr,  Burton.  Mr.  Chairman,  I  am  opposed  to 
the  naval  program  exempUfied  by  this  bill.  I  oppose 
it  because  I  believe  it  involves  a  departure  from  the 
fundamental  principles  and  policies  which  are  alike 
the  bulwark  and  the  honor  of  this  Republic. 

It  involves  great  extravagance;  but  that  is,  after 
all,  a  minor  consideration.  We  can  in  no  way  illus- 
trate the  growth  of  our  naval  estabUshment  so  well 
as  by  referring  to  certain  figures. 

In  the  years  1886  and  1887  there  was  expended  for 
the  Navy  respectively  $13,907,000  and  $15,141,000. 
The  expenditures  for  the  year  1903  were  $82,000,000. 
The  present  bill  carries  a  total  of  $96,000,000,  almost 

^  From  the  Congressional  Record,  February  22,  1904, 
58th  Congress,  2d  Session,  Vol.  38,  pp.  2293-5. 
139 


APPENDIX 

seven  times  as  great  an  amount  as  that  expended  in 
1886,  and  more  than  six  times  as  great  as  the  amount 
expended  in  1887.  What  is  the  need  of  this  great 
Navy?  What  nation  on  earth  is  attacking  us  or 
threatening  us  ?  .  .  . 

The  fact  is,  we  do  not  need  a  great  navy  unless 
there  is  a  combination  of  all  European  powers 
against  the  United  States,  and  what  is  more  unhkely ! 
If  there  were  a  combination  of  all  these  powers,  we 
could  not  provide  a  navy  which  could  cope  with 
them  without  such  a  change  in  political,  social,  and 
economic  conditions  as  would  be  absolutely  appall- 
ing to  us.  Indeed,  we  could  not  build  a  navy  greater 
and  stronger  than  that  of  Great  Britain  alone  with- 
out changing  the  whole  framework  of  society  in  this 
country.  .  .  . 

What  is  the  reason,  then,  for  this  great  expendi- 
ture of  $96,000,000,  an  amount  approaching  the 
total  that  is  expended  for  the  strictly  civil  side  of  the 
Government,  bearing  in  mind  that  the  Post-Office  is 
nearly  self-sustaining  ?  It  means  that  we  are  inviting 
the  nations  of  the  earth  to  attack  us.  It  means  that 
we  are  declaring  to  the  world  that  we  are  going  to 
enter  into  a  field  entirely  different  from  that  which 
we  have  occupied  in  the  past;  that  we  are  striving  to 
140 


APPENDIX 

dominate  political  affairs  in  other  portions  of  the 
earth.  Is  anybody  afraid  of  the  Monroe  Doctrine  ? 
In  ten  years  we  have  had  instances  enough  to  show 
that  the  Doctrine  is  admitted  by  all  nations  to  be 
an  established  fact  in  the  diplomatic  policy  of  the 
world.  It  has  been  strained  at  times,  in  the  opinion 
of  some  of  us,  without  awakening  any  opposition 
whatever,  so  there  is  no  cloud  over  it.  Our  supre- 
macy in  this  hemisphere  is  admitted,  and  that  su- 
premacy will  rest  upon  the  strongest  foundation 
while  it  is  exercised  in  justice  and  with  the  desire  to 
promote  honesty  and  good  faith  between  these 
repubhcs  and  all  the  nations  of  the  earth.  [Ap- 
plause.] .  .  . 

I  understand  one  gentleman  of  this  House,  speak- 
ing a  few  days  ago,  said  that  Germany  would  soon 
attack  us.  What  hobgoblin  disturbed  him  in  his 
dreams  ?  [Laughter.]  There  is  just  about  as  much 
chance  of  war  with  Germany  as  that  by  some  great 
cataclysm  part  of  the  Eastern  Hemisphere  will  slip 
over  here,  so  that  one  of  her  capes  will  abut  against 
our  country.  The  nations  of  Europe  respect  us; 
they  honor  us,  and,  so  far  as  fear  is  salutary,  they 
fear  us.  We  have  an  economic  advantage  as  com- 
pared with  any  part  of  the  whole  world.  They  know 
141 


APPENDIX 

that  in  war  our  friendship  is  necessary.  War  is  not  a 
matter  alone  of  battleships,  nor  of  men  and  cannon, 
but  of  resources  and  staying  qualities,  of  abihty  to 
provide  for  the  strain  and  distress  of  a  great  struggle. 
What  nation  of  Europe,  if  it  were  engaged  in  war, 
would  desire  to  lose  our  friendship  and  good-will  ? 

There  is  another  very  important  phase  of  this 
question.  The  tendency  of  the  present  time  is 
toward  peace.  The  situation  is  now  such  in  the  Old 
World  that  no  country  can  go  to  war  without  grave 
reason,  at  least  vtdthout  incurring  the  condemna- 
tion of  the  rest.  Since  1815,  during  which  time,  as  it 
would  seem,  the  world  has  grown  in  inventions  and 
in  the  improvements  which  come  with  civiUzation 
more  than  in  all  the  centuries  before,  the  nations 
of  Europe  have  tried  to  maintain  peace  and  amity, 
because  they  knew  that  war,  with  its  devastation  and 
bloodshed,  brings  unhappiness  and  calamity  to  all 
the  nations  of  the  earth. 

So  the  nations  are  warned  they  must  not  go  to  war 
unless  they  have  the  most  weighty  reasons.  Now, 
here  is  our  country,  one  which  should  most  of  all  set 
an  example  which  shall  look  toward  a  better  day  of 
peace  and  amity,  that  is  spending  six  times  as  much 
for  its  Navy  as  it  did  seventeen  years  ago.  W^e  have 
142 


APPENDIX 

nothing  to  do  with  their  rivalries  and  quarrels. 
Almost  as  much  as  by  our  republican  institutions 
and  the  push  and  energy  of  the  American  citizen  we 
have  gained  our  present  standing  among  the  nations 
of  the  earth  by  our  splendid  isolation.  We  are  re- 
mote from  wars  and  conflicts.  Shall  we  declare  to 
the  nations  of  the  earth  that  we  will  depart  from 
these  old  poUcies;  that  new  ambitions  inspire  and 
actuate  us  ?  Shall  our  battleships  hne  up  with  the 
battleships  of  the  countries  which  for  centuries  have 
been  maintaining  an  extensive  and  depressing  mili- 
tary establishment? 

If  so,  the  indication  does  not  look  toward  peace; 
it  looks  toward  war,  and  we  will  be  taking  a  back- 
ward step.  "  My  art,  it  was  but  justice,"  were  the 
words  the  dramatist  put  in  the  mouth  of  Cardinal 
Richelieu.  Our  art  and  our  glory,  they  are  but 
justice.  [Applause.]  And  if  we  stand  for  the  tri- 
umphs of  just  diplomacy  rather  than  by  those  of 
cannon  and  guns,  we  will  gain  the  respect  of  the 
world.  Oh,  but,  some  one  says,  it  needs  war  to  be- 
stir and  maintain  our  manhood.  There  are  enough 
opportunities  for  heroism  in  this  world,  with  its  tra- 
gedies and  difficulties,  without  war.  I  have  listened 
here  sometimes  to  men  who  fomented  conflict  by 
143 


APPENDIX 

their  utterances.  I  have  wished  there  was  a  rule  in 
this  House  that  when  a  man  talked  in  favor  of  war, 
it  should  be  settled  that  in  case  war  ensued  he  must 
stand  in  the  most  conspicuous  place  on  the  firing 
line  for  at  least  the  length  of  time  he  consumed  in 
his  speech.  [Applause.] 

"  They  are  the  men  behind  the  guns,"  says  one  of 
our  humorists ;  "  yes,  4000  miles  behind  the  gun  and 
willing  to  be  farther."  [Applause.]  We  cannot  afford 
as  a  country  to  allow  our  example  to  be  exerted  in 
the  direction  of  war  and  great  military  establish- 
ments. It  is  not  alone  the  first  expense,  which  will 
increase  far  more  than  we  can  realize,  but  we  must 
consider  that  probably  for  every  dollar  invested  in  a 
battleship,  in  a  short  space  of  years  ten  dollars  will 
be  required  for  the  maintenance  and  equipment  of 
the  ambitious  naval  establishment  which  is  pro- 
jected. You  must  have  dry  docks  and  you  must  have 
naval  stations;  you  must  have  coaling  stations  and 
colliers,  with  all  the  incidents  which  belong  to  a  great 
navy.  Nearly  one  hundred  milHons  will  be  expended 
now  and  far  more  in  the  early  future.  But  far  more 
important  than  the  expenditure  of  money  is  the 
threatening  prospect  for  the  future  which  this  policy 
affords. 

144 


APPENDIX 

I  wish  that  the  words  of  him  whose  birthday  we 
celebrate  to-day  could  be  heard  again.  His  heart 
was  always  for  peace.  He  was  ready  to  fight  and 
to  die  for  his  country,  but  he  left  in  his  Farewell 
Address  that  which  is  a  priceless  heritage,  the 
injunction  to  cultivate  and  maintain  peace  and 
good-will  with  all  nations.  [Applause  on  the  Demo- 
cratic side.]  He  set  forth  principles  which  will  be 
immortal  because  they  are  immortally  right.  I 
wish  I  could  with  some  degree  of  force  so  much  as 
whisper  in  the  ears  of  men  those  words  of  William 
McKinley :  — 

"  Let  us  ever  remember  that  our  interest  is  in  con- 
cord, not  conflict;  that  our  true  glory  rests  in  the 
triumphs  of  peace,  not  those  of  war." 

Oh,  but  it  is  said,  "This  is  merely  a  defensive 
measure;  the  best  way  to  secure  peace  is  to  be  ready 
for  war,  and  so  build  up  a  great  navy."  How  similar 
to  that  are  the  words  of  Uriah  Heep  when  he  said, 
"  We  know  that  we  are  humble,  but  we  are  afraid 
that  other  people  that  are  not  humble  will  get  the 
start  of  us."  The  best  way  to  secure  peace  is  to  pro- 
mote every  means  for  an  amicable  settlement  of  na- 
tional controversies  by  an  international  tribunal  like 
the  courts  which  render  judgments  between  individ- 
145 


APPENDIX 

uals,  so  that  its  judgments  may  be  sanctioned  and 
enforced.  The  strongest  sanction  that  can  be  given 
as  the  years  will  go  by,  a  force  as  strong  as  a  despo- 
tism for  the  enforcements  of  its  decrees,  will  be  that 
of  public  opinion,  which  is  the  controlling  force  in 
our  own  country  at  this  day. 

Every  step  that  you  take  to  build  other  battle- 
ships and  to  increase  the  Navy  is  another  influence 
against  setthng  disputes  in  this  way.  Is  there  no 
voice  to  be  raised  among  us  in  favor  of  making  ad- 
vancement in  setthng  the  world's  controversies  in  an 
amicable  manner  ?  Are  we  to  go  even  ahead  of  the 
other  nations  in  our  naval  program  }  I  want  to  call 
attention  to  this  report  to  show  that  in  comparison 
with  us  France  and  Germany  and  other  powers  are 
abating  in  their  efforts  for  a  greater  navy.  It  is  the 
United  States  that  is  going  ahead  with  the  greatest 
rapidity;  it  is  the  United  States  that  is  saying,  in 
effect,  if  not  in  words,  we  are  to  be  ready  for  war, 
which  means  that  we  invite  war.  .  .  . 

One  gentleman,  as  I  understand,  opposed  this  bill 
because  the  material  for  the  Navy  was  made  by  the 
trusts.  That  shows  how,  when  a  man  gets  a  fad  in 
his  mind,  he  will  go  astray.  You  will  never  attack 
the  naval  program  with  any  such  popgun  as  that 
146 


APPENDIX 

—  by  saying  that  the  material  that  belongs  in  the 
ships  is  made  by  a  trust.  There  is  a  broader  and 
higher  ground,  and  that  is  its  effects  upon  the  future 
of  this  great  nation,  upon  civihzation  here  and  every- 
where. Shall  our  statesmanship  with  its  aspirations, 
its  forecast  of  the  future,  look  toward  peace  and 
amity  and  good-will,  or  shall  it  look  toward  the 
bloody  days  of  war  ?  For  one  I  want  to  say  that  I  am 
unable  to  vote  for  a  bill  that  carries  so  large  an 
amount  as  this.  I  am  unable  to  vote  for  a  bill  that 
declares  that  the  United  States,  which  should  be  the 
herald  of  peace,  the  leader  in  all  great  movements 
of  civilization,  is  going  to  double  and  treble  and 
quadruple  its  Navy,  all  under  the  statement  that 
we  claim  that  it  is  in  the  interest  of  peace. 

Gentlemen,  you  are  not  going  to  make  the  world 
think  that  it  is  in  the  interest  of  peace.  I  doubt 
whether,  if  you  reflect  upon  it  in  your  own  inner 
consciousness,  you  beUeve  that  these  battleships 
and  cruisers  and  torpedo  boats  mean  that.  They 
mean,  rather,  the  gratification  of  a  desire  that  we 
shall  enjoy  the  triumphs  of  war  upon  the  land  and 
the  sea  again.  I  would  not  detract  from  the  glories 
of  the  American  Navy.  I  believe  it  is  an  efficient 
naval  force,  one  which,  as  ex-President  Harrison 
147 


APPENDIX 

said,  man  for  man,  gun  for  gun,  shall  be  the  best  in 
the  world;  but  this  bill  means  something  very  differ- 
ent from  that.  This  is  a  program  far  more  ambi- 
tious and  emphatic.  It  seems  to  display  a  desire  that 
the  future  poUcy  of  this  country  shall  be  one  of 
conflict.    [Applause.] 


EUctrotyped  and  printed  by  H.  O.  Houghton  &'  Co. 
Cambridge,  Matt.,  U.S.  A. 


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